Chacon v Rondo Building Services Pty Ltd
[2011] NSWADT 72
•06 April 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Chacon v Rondo Building Services Pty Ltd [2011] NSWADT 72 Hearing dates: 15, 16, 17, 21 September 2010 Decision date: 06 April 2011 Before: J Needham SC, Deputy President
M O'Sullivan, Non-Judicial Member
L Monaghan-Nagle, Non-Judicial MemberDecision: 1. The complaint is dismissed.
2. No order as to costs in relation to the summons.
Catchwords: Equal Opportunity - direct discrimination on the grounds of sex - indirect discrimination on the grounds of carer's responsibilities - factual disputes - no matter of principle.
Costs - costs of summons issued to applicant to produce documents after documents sought informally - whether fair to order costs - applicant self-represented - no order for costs.Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54
Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Amery v NSW [2004] NSWCA 404
Neeson v Director General, New South Wales Department of Education and Training (No 2) [2010] NSWADT 92
Commissioner of Corrective Services v. Aldridge [2000] NSWADT 5
Purvis v State of New South Wales (2003) 217 CLR 92Category: Principal judgment Parties: Rebecca Chacon (Applicant)
Rondo Building Services Pty Ltd (Respondent)Representation: Counsel
K Edwards (Respondent)
R Chacon (Applicant in person)
FCB Workplace Law (Respondent)
File Number(s): 091041
reasons for decision
The applicant, Rebecca Chacon, was employed by the respondent, Rondo Building Services Pty Ltd ("Rondo"), from 4 June 2007 until 24 November 2008, although her last day of actually attending the respondent's workplace was 8 October 2008. She alleges that she was unlawfully discriminated against by the respondent's breaches of the Anti-Discrimination Act 1977 ("the Act"); directly, on the ground of sex and indirectly, on the ground of carer's responsibilities, in the area of employment.
The applicant lodged a complaint with the Anti-Discrimination Board (Ex A) on 30 October 2008. That complaint was transferred to this Tribunal on 18 March 2009. The period of the complaint covers June 2008-9 October 2008 (see page 2, Ex A). This is a shorter period than that of her employment, which ran from 4 June 2007 until December 2008.
In her complaint, the applicant gave a history of her employment with Rondo and the areas in which she alleged she was unlawfully discriminated against. During the directions hearings, a document was prepared by the respondent which became Ex B in these proceedings. That document is headed "Schedule 1 - Respondent's Summary of the Applicant's Claim". When the matter came on for hearing some of the matters of complaint set out in Ex B withdrawn by the applicant. Apart from the matters withdrawn during the hearing, the parties were agreed that that document constituted the issues for hearing.
The issues for determination therefore were (summarising Ex B):-
(a) whether the respondent breached ss 25(2)(a), 25(2)(b) or 25(2)(c) of the Act, and as defined in s 24(1)(a), by not providing her with tools (such as a laptop, a camera and a mobile phone), and in relation to her use of her private car, being a complaint of direct discrimination on the ground of sex;
(b) whether the respondent breached ss 25(2)(a) or 25(2)(b) of the Act in relation to payment of university fees, being a complaint of direct discrimination on the ground of sex;
(c) whether the respondent breached ss 49V(2)(a) or 49V(2)(d) of the Act, and as defined in s 49T(1)(b), in relation to the applicant's responsibilities as a carer, and in changing her times of work from 6.30 am to 4.30 pm, to 8.30 am to 5.30 pm, being a complaint of indirect discrimination on the ground of carer's responsibilities;
(d) whether the respondent breached s 25(2)(c) of the Act, and as defined in s 24(1)(a), in relation to bullying treatment, (and there followed a list of the alleged treatment), being a complaint of direct discrimination on the ground of sex; and
(e) whether the respondent breached s 25(2)(b) of the Act, and as defined in s 24(1)(a), in relation to the amount of the applicant's bonus, being a complaint of direct discrimination on the ground of sex.
The respondent filed a Points of Defence which set out the "Schedule 1" agreed issues and generally denied any differential treatment on the ground of sex or any indirect discrimination in relation to the applicant's carer's responsibilities. It says in particular:-
a) the respondent complied with its policies in relation to private use of cars on company business, provision of business tools, and reimbursement of study expenses, and that it did not treat her differently than it did, or would have, treated a male employee;
b) the respondent did not admit that the applicant had carer's responsibilities, but if she did, it denies that she was unable to comply with the working hours requirement because she made no request to change her hours. Nor is it said that the requirement was unreasonable;
c) the respondent denies any bullying treatment;
d) the respondent denies that the applicant's bonus was paid at 10% rather than 20% on the basis of the applicant's sex.
The legislation
The relevant legislation is extracted below as follows:-
24 What constitutes discrimination on the ground of sex
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex .
25 Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of sex:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
...
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
...
49S Meaning of "responsibilities as a carer"
(1) A reference in this Part to a person's responsibilities as a carer is a reference to the person's responsibilities to care for or support:
(a) any child or step-child of the person (whether or not under the age of 18 years) who is:
(i) wholly or substantially dependent on the person, or
(ii) in need of care or support, or
(b) any child or adult who is in need of care or support and:
(i) of whom the person is guardian, or
(ii) for whom the person has parental responsibility under a law of the Commonwealth or this State, or
(iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998 , or
(c) any immediate family member of the person who is in need of care or support, being one of the following:
(i) a spouse or former spouse of the person or of a spouse or former spouse of the person,
(ii) a grandchild or step-grandchild of the person or of a spouse or former spouse of the person,
(iii) a parent or step-parent of the person or of a spouse or former spouse of the person,
(iv) a grandparent or step-grandparent of the person or of a spouse or former spouse of the person,
(v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person.
(2) A reference in this Part to a person's responsibilities is a reference to responsibilities:
(a) that the person has, or
(b) that the person is thought to have (whether or not the person in fact has the responsibilities), or
(c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or
(d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities).
(3) In this section:
spouse of a person means:
(a) the husband or wife of a person, or
(b) the de facto partner of a person.
Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987 .
step-child or step-grandchild of a person means:
(a) a child or grandchild of the spouse or former spouse of the person, or
(b) a step-child or step-grandchild of the spouse or former spouse of the person (being a child or grandchild of the spouse's former spouse).
(4) A reference in this section to a child, step-child, grandchild, step-grandchild, parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother or step-sister of a person or of a spouse or former spouse of a person:
(a) includes a reference to persons whose relationship arises because of adoption, guardianship or fostering or because of the allocation of parental responsibility under a law of the Commonwealth or this State, and
(b) includes a reference to persons whose relationship arises because of the birth of a child whose parents are not married to each other and are not parties to a de facto relationship with each other, and
(c) in relation a reference to a brother or sister, includes a reference to a half-brother or half-sister.
49T What constitutes discrimination on the ground of a person's responsibilities as a carer
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:
...
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.
49V Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer:
(a) in the terms or conditions of employment that the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
The complaint period
It is important given the complaint period to bear in mind that the Tribunal's power is limited to determining whether specified conduct that occurred in or was continuing during the complaint period is in breach of the Act: Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54 at [10]; Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9 at [12]. Accordingly, while the Tribunal is entitled to take account of matters outside the period of complaint if they are logically or evidentially probative of the complaints, the Tribunal is limited to finding that breaches took place or were continuing within the time period of the complaint (see Butcher , at [16]).
The facts
Evidence was taken from the following persons, both written and oral:-
a)the applicant (statements Ex C and D);
b)Craig Keen (Group Technical Manager) (statement Ex 2);
c)Andrew Byrne (former National Technical Services Manager) (statements Ex 3 and 4)
d)Donna Strahan (HR Coordinator from June 2008, then National HR advisor from March 2010) (statements Ex 5 and 11); and
e)Gabriel Tana (General Manager, Sales and Marketing) (statement Ex 6).
Each of the above witnesses was cross-examined.
In addition the parties agreed on an Agreed Statement of Facts (Ex E) which dealt with the matters in the Schedule 1 document.
The applicant is, and was at the start of her employment, a qualified engineer. She has completed the degree of Bachelor of Engineering (Mechanical) and was at the time of her employment by the respondent, a qualified mechanical engineer. She found employment at Rondo with the assistance of Mr Kevin Robinson, a recruiter. Mr Robinson was not called to give evidence.
The applicant attended an initial interview in around May 2007. Mr Byrne (who was then the National Technical Services Manager), Ms Chacon and Mr Robinson attended. Mr Byrne said that no salary or hours were discussed at that interview. He said that when he noted how far she lived from the office, the applicant noted that she would drive her own car, and Mr Tana said that Rondo would provide a toll tag for her. About a week later, Ms Chacon, Mr Robinson, Mr Byrne and Mr Tana attended a second interview. The applicant says that at this meeting "issues relating to my employment" such as car usage, study and flexibility were discussed.
Mr Byrne recalled a mention of Ms Chacon's need to "do things with her son during work hours occasionally", and said that this reference came from Mr Robinson. He was also told by Mr Robinson that Ms Chacon was "a single mum". Mr Byrne said that Mr Tana said that the position as to leave to look after her son would "obviously involve a bit of give and take".
Ms Chacon was then employed in the role of National Technical Services Engineer by way of a letter dated 30 May 2007 from Mr Byrne (See annexure P, Ex 2). It provided for a salary of $57,500 plus a toll tag for company travel and the trip to and from work. The bonus was expressed to be "up to 10% of base salary based on KPIs as mutually agreed" and noted the "open policy of supporting its employees in their professional development and as such, is willing to fund any professional training courses that you think are relevant to your development and beneficial to Rondo".
She commenced work on 4 June 2007 and had conversations at the outset of her employment with Mr Byrne, in which she said she discussed her need for flexibility, study leave (which she said Mr Byrne agreed did not have to be made up), and hours of work being 6.30 am to 4.30 pm with half an hour for lunch, although she said in her initial complaint that the hours were not "a fixed condition of employment" (see p 16, Ex A). She said that her working hours were dictated by her need to care for her son and that this was made clear to both Mr Tana and Mr Byrne (see page 16, Ex A).
Ms Chacon said that she had to report to both Mr Keen and to Mr Byrne, but the weight of the evidence shows that she reported to Mr Byrne formally until he resigned. It also shows that she had contact with other senior members of staff. A memorandum of 12 June 2008 from Mr Keen clarified the reporting line of Ms Chacon reporting to Mr Byrne (see annexure C, Ex 3). Mr Tana said that Mr Byrne reported "directly to him" (par [7, Ex 6) and that Ms Chacon reported to Mr Byrne. After Mr Keen was employed by Rondo in June 2008, Mr Tana said that he left management of Mr Byrne and Ms Chacon to Mr Keen.
On 14 July 2008 Ms Chacon received a pay review and an increase of 4.4% (see attachment P, Ex 6)
The relationship between Mr Byrne and Ms Chacon
While not strictly an issue in the proceedings in the sense of no ADB complaint having been made in relation to it, there was a clear conflict between Ms Chacon and Mr Byrne throughout the bulk of their respective employments. This conflict is relevant to the substantive complaints as well as to credibility of the various witnesses.
Ms Chacon evaluated her employment after 30 days in a form provided to Mr Robinson, and had at that point mainly positive things to say about Mr Byrne (see attachment A, Ex D). However, things deteriorated not long after that. Mr Byrne says that there was "tension and frustration" between himself and Ms Chacon, and mentions "a mediation session" in late 2007. The mediation sessions continued into 2008 with Mr Tana and, later, Mr Keen being involved. Mediation confidentiality was mostly maintained at the hearing but it appears that the subjects of the mediation sessions were Mr Byrne's management style, and the provision of training to Ms Chacon by Mr Byrne.
Some light was shed on the personal difficulties between Mr Byrne and Ms Chacon by Mr Byrne's supplementary statement (Ex 4). It attaches (Ex B and C) emails from Mr Robinson, the original recruiter who placed Ms Chacon at Rondo, to Mr Tana, which was sent on to Mr Byrne. The emails reflect a position where Ms Chacon was frustrated with Mr Byrne's management style and commenced actively looking for other employment. She complained of many things to Mr Robinson, including of not having any work to do, Mr Byrne's not giving her work, Mr Byrne's expectations and his treatment of her and of others. Mr Byrne noted in his supplementary statement that whenever he approached Ms Chacon she would say that everything was "ok", an approach reflected in one of Ms Chacon's emails in which she said she had "changed her approach" to "act like it's all good".
A number of emails between various people including Mr Tana were attached to Mr Tana's statement (Ex 6), which made it clear that in Ms Chacon's view, other persons, including "reps" and Mr Griffin, were being subjected to the same treatment from Mr Byrne as she was receiving (see, for example, page 26 of Ex 6 where Ms Chacon noted that she "felt like a PA" and that "Dane [Griffin]'s become his PA too HA!".
Mr Byrne became aware in late 2008, after leaving Rondo, that Ms Chacon had made complaints about him and alleged personal matters about him in the context of her worker's compensation claim. There was no allegation in that complaint against him of discrimination on the ground of sex or carer's responsibilities.
It is clear that there was a deal of personal animosity between Ms Chacon and Mr Byrne. However, most of the allegations by Ms Chacon as referred by the ADB to this Tribunal relate to the time after Mr Byrne resigned (although a number of the allegations have their genesis in the time during which Mr Byrne supervised Ms Chacon) and the Tribunal has considered the factor of personal animosity in the matters raised by Ms Chacon and in Mr Byrne's reply to them.
The Warning Letter, and allegations of bullying
The Byrne/Chacon issues were such that a meeting between Mr Keen, Mr Tana, Ms Chacon and Mr Byrne was held on 16 July 2008, and by 17 July 2008 each of the two employees received a letter from Mr Keen setting out his concerns with "serious issues between [Mr Byrne] and [Ms Chacon]" which had been raised "on several previous occasions over the last nine months". The concerns set out were:-
a)Arriving late or leaving early without explanation and/or notification;
b)Copying any documents on other people's desks, without the document owner's explicit permission. If this is requested of you by somebody else, it should be brought to the attention of either [Mr Tana] or [Mr Keen] immediately;
c)Carrying on malicious gossip about work colleagues;
d)Failure to treat work colleagues with respect and professional courtesy.
The letter to Ms Chacon noted that:-
"Similar notice will be given to [Mr Byrne]. As agreed at the aforementioned meeting, Gabe and I, in conjunction with yourself and Andrew, will be setting some specific performance targets. These targets will be closely monitored, and failure to achieve the expected performance may result in dismissal".
A letter in very largely similar terms was given to Mr Byrne.
The evidence of Mr Keen was that the first point as to punctuality did not necessarily apply to Ms Chacon, but more to Mr Byrne. The second point referred, the applicant said, to an incident where Mr Byrne instructed Ms Chacon to take documents. Mr Keen said that his view was that as Ms Chacon was involved, the second point applied to her. Ms Chacon was of the view that it did not. The third point applied to Ms Chacon in Mr Keen's view, but not in Ms Chacon's, and the fourth point was agreed to be a reference to Ms Chacon's conduct.
While Ms Chacon referred to this as a "notice letter", Mr Keen said it was a "warning letter". The terms of it were more akin to a warning letter than a letter giving notice. It required changed behaviour on the part of the two addresses, and did not provide a period of notice. It envisaged a change in procedures to ensure that the behaviour changes were maintained. Mr Keen said that the processes or procedures referred to in the letter were not put in place given that Mr Byrne resigned shortly afterwards.
The applicant said that leading up to the meeting and the letter was a period of "bullying behaviour". She says that after the letter she felt bullied by Mr Keen, and "I felt victimised and singled out as a female by being treated in such a manner".
Mr Keen and Mr Tana each denied bullying Ms Chacon, and they each denied that the warning letter was a threatened dismissal.
Mr Byrne said that during the meeting Mr Keen said to each of them:-
"It's obviously not working out between the two of you. If you can't sort out your differences and act professionally then it would mean that someone has to go".
On 22 July 2008 Mr Byrne resigned. He said that this was because he did not believe Ms Chacon would adhere to agreements she had made in the past to changing her behaviour, and that he had taken all reasonable steps to address issues so that they could work together effectively.
Mr Keen was responsible for the team of three engineers which was made up of Mr Byrne, Ms Chacon and Mr Lui after his employment by Rondo in June 2008. Mr Lui was originally based in New South Wales but later relocated to Queensland as the only person in the National Technical Engineering department there. Mr Keen set out in his June 2008 memo that the chain of command was that day-to-day issues between the three should be handled by Mr Byrne. When Ms Chacon spoke to Mr Keen about queries (including her working hours in the light of her university studies) he told her to approach Mr Byrne. His main interaction with Ms Chacon was to provide her with training. Mr Keen reported to Mr Tana, and said that Mr Tana had more contact with Ms Chacon than he did. After Mr Byrne resigned Ms Chacon reported directly to Mr Keen.
The applicant said that after the letter was received she had a number of absences due to work related stress.
On 26 August, 2008, the applicant met with Mr Bertuch, who was in-house counsel of a parent company of Rondo. She said that he told her that she should seek an external lawyer for advice. The applicant said that the next day Mr Tana and Mr Keen approached her and asked her about the meeting. Mr Keen said words to the effect. "If you can't cope, well, you know...". Ms Chacon pointed to this as both being bullying, and a breach of confidentiality that Mr Bertuch told Mr Tana and/or Mr Keen of the conversation in which she complained to him.
Mr Tana and Mr Keen agreed they had a conversation with Ms Chacon after she went to see Mr Bertuch. Their evidence was that they encouraged the applicant to approach them rather than going outside Rondo to the parent company, and to discuss matters with them instead.
In August 2008, the respondent became aware that Ms Chacon and Mr Robinson had "a personal relationship" (see par [12], Ex 6) and, partly as a result, terminated the commercial agreement that Mr Robinson and his company had with Rondo. No action was taken with respect to that relationship with regard to Ms Chacon.
The applicant said that she felt that she had been singled out as a female and her time there was marked by bullying, undermining and constructive dismissal tactics. Mr Keen's evidence was that Ms Chacon's perception of discrimination in relation to provision of work tools, and her treatment in relation to car expenses, was not substantiated.
In her first statement (Ex C), the applicant said that Mr Patrick Lui was provided with benefits and support that she did not obtain during her time. She said that he was given a laptop, work phone, camera and car allowance. She said that her phone was taken by Mr Byrne, and she had to use her own phone. She says she was not given a salary review or a company car, whereas Mr Lui obtained both.
Ms Chacon attended work until 8 October 2008. On 9 October 2009 she provided a medical certificate for anxiety for work stress. Ms Strahan noted that Ms Chacon was uncontactable on 14 October. Later that day Ms Strahan sent Ms Chacon a "Worker's Injury Claim form" which Ms Chacon filled in and returned, citing her injury as "psychological" and the details being "continued bullying, harassment from senior management". Ms Strahan had a discussion with the insurance Claims Officer who cited a number of complaints Ms Chacon had with Rondo. It is notable than none of them cites discrimination on the grounds of sex; rather, the complaints made to the Claims Officer are of a downturn in work, and of personal difficulties resulting in her losing her mobile phone, a car allowance, and her E-tag.
The Workers Compensation claim lodged by Ms Chacon was denied, on the basis that Ms Chacon had not been injured. Ms Chacon's leave entitlements were exhausted on 6 November 2008. On 13 November 2008, Ms Strahan sent her a letter seeking that she return to work on 17 November 2008 and that she contact Mr Keen. She did not return to work, and on 18 November 2008 a letter was sent by Ms Strahan indicating that if she did not return to work or contact Mr Keen to discuss her return by 5 pm on 24 November 2008, her employment would be terminated. On 25 November her employment was terminated on the basis of Abandonment of Employment.
A number of issues were dealt with separately, and the evidence in relation to these is summarised in more detail below.
Work tools Issue
On her first day, Ms Chacon says Mr Tana offered her a laptop to work from home. Mr Byrne said that he did not recall her being offered a laptop at the interview stage. Mr Tana denied offering Ms Chacon a laptop.
Mr Keen said that "laptops are generally issued to Rondo employees who are travelling or if the employee needs a laptop to work from home". He said that Mr Lui and Mr Griffin did not have laptop computers (at least when Mr Lui worked in Sydney). He further said that Mr Lui did not have a camera when he was in Sydney. There were cameras in the office.
Mr Byrne made a request for a laptop for Ms Chacon in May 2008. The request was made after Ms Chacon took a leave day when her son was sick, to enable her to work from home. However, Mr Byrne then formed the opinion that because Ms Chacon needed supervision for about 10-20 per cent of her work, he believed that she should not be able to work at home unsupervised and cancelled the laptop request. The order was cancelled in or around June 2008. Mr Byrne said he raised this with Mr Tana and that Mr Tana accepted that decision. Mr Tana said that he accepted Mr Byrne's view on the matter, as the person with the day-to-day management of Ms Chacon, and that Mr Lui did not have a laptop before he relocated to Queensland.
After he relocated to Queensland, Mr Lui was provided with a laptop. Mr Byrne said that this was because Mr Lui was qualified in structural engineering, because he did site visits and field work, and he had formed the view that having a laptop would allow him to be more productive in working from home. In relation to the cancellation of Ms Chacon's laptop, Mr Byrne said that Ms Chacon needed much more guidance than Mr Lui. He denies that this was on the basis of her sex.
Mr Byrne said that in or about late October or early November 2007, he organised to provide Ms Chacon with a mobile phone. Mr Tana later, in early 2008, raised with him that "most of Rebecca's calls are for personal use", and that there were a large number of SMS charges. Mr Tana attached (attachment F, Ex 6) Ms Chacon's telephone bills. In December 2007/January 2008, for example, there were 342 SMS messages, most of them to the same number (that of Mr Robinson). Mr Byrne discussed the issue of her personal phone use with Ms Chacon and she volunteered to return her work phone. He said that she did so some four months later, after he had followed up with her on a number of occasions.
Mr Keen gave evidence that Ms Chacon said to him in about August 2008 that she no longer wanted her work mobile phone. He agreed and felt it was not required as she did not travel much.
The phone was returned on 7 August 2008.
Mr Byrne gave evidence that in around early 2008 he purchased two digital cameras for the Technical Services Department. He provided one to Mr Lui in Queensland and one to Ms Chacon. He said that he said to Ms Chacon:-
"When you go and attend a site, take a camera with you so you can take photographs of the site".
The digital camera was taken by Mr Keen when he went to Malaysia in about July 2008. He said that he asked to borrow it and she gave it to him. According to his understanding it was the property of the company, and that it was the "only camera available for the use of employees in the Technical Services Department in New South Wales".
Mr Byrne said he gave Mr Keen permission to take the camera to Malaysia. He said words to the effect, "Why don't you borrow Rebecca's camera, it's a work camera".
The complaint relating to the laptop, mobile phone and camera is a complaint of direct discrimination on the grounds of Ms Chacon's sex (see point 1, Ex B).
Car Allowance or Company Car
Ms Chacon alleged that she was not given a company car, and that failure to provide her with a company car was an instance of direct discrimination. She notes that Mr Byrne's car, after his resignation, was provided to Mr Lui instead of to her. Mr Tana denied having any conversation with her to the effect that she would get a company car.
Mr Keen said that Mr Byrne's old company car was given to Mr Lui because it was cheaper than terminating the lease. He said that the car was provided to Mr Lui in lieu of a vehicle allowance. He says it was a financial decision, as well as a practical one because Mr Lui was the only engineer in the Queensland office and spent a lot of his time performing site visits and visiting customers.
Mr Tana corroborated Mr Keen's account, and noted that the decision to offer the car to Mr Lui was both a financial decision as well as a management decision, given that it was "necessary to ensure that Mr Lui's remuneration package, as a fully qualified and experienced Structural Engineer, were kept in line with the market changes in remuneration for an employee with Mr Lui's skills".
Ms Strahan noted that the relevant policy was that company leased vehicles were provided to employees if the car was required as a "tool of trade" and novated lease vehicles were available to the senior team.
While Ms Chacon did do some site visits, it was the weight of the evidence that her experienced did not permit her to do very many and that mainly she worked in the office.
The complaint about the failure to provide a company car or a car allowance is a complaint of direct discrimination on the ground of Ms Chacon's sex (see point 1, Ex B).
Travel Claims
A number of Ms Chacon's travel claims were in evidence. Ms Chacon alleged that she was directly discriminated against in relation to the use of her private car. The defendant tendered a number of travel claims which showed that Ms Chacon was claiming a trip of between 170 to 200 kms for the trip to Holsworthy. Mr Byrne would approve these claims, but Mr Keen refused a claim of this nature when it was presented to him, and asked Ms Chacon to re-submit it. Exhibit 9 revealed that the Google Maps distance from the respondent's office to Holsworthy was 39.5kms each way.
In relation to car expenses, Mr Keen said that employees using their own car for work trips were reimbursed after filling out a Travel Expense Statement and then reimbursed 60 cents for each kilometre travelled. Mr Byrne approved Ms Chacon's travel forms but after his departure, this was handled by Mr Keen. In about August 2008 Ms Chacon gave him a Travel Expense Statement claiming 300km for a trip from the respondent's office to a client's office, which Mr Keen estimated as being significantly less. He refused to sign it, told her to check the distance on Google Maps and he would approve a resubmitted claim. He said that Ms Chacon did not resubmit the form, and did not seek any further reimbursement of travel claims from him.
In cross-examination, Ms Chacon said that she did not resubmit the form because Mr Keen kept it. She explained the apparently excessive kilometres claimed by her on the Holsworthy trips (and others, to Breakfast Point and Auburn) as including kilometres travelled to and from work from her home on the basis that "everybody did it". She also sought to make a point that she had on some occasions followed Mr Byrne and thus adopted his directions, and also relied on the fact that he had authorised the excessive kilometres in the past.
The complaint that Rondo required Ms Chacon to use her own car, but failed to pay her for it, is a complaint of direct discrimination on the ground of Ms Chacon's sex (see point 1, Ex B).
University Fees
Ms Chacon complained that Rondo failed to pay her university fees.
Rondo's training policy was in evidence, as Attachment E to Ex 5. It provides:-
"Where employees are employed in [positions which require tertiary qualifications] and are gaining qualifications through one of the tertiary institutions, Rondo will reimburse the employee's fees and books on the successful completion of this stage."
There followed a discretion to approve payment up front, and to approve paid study leave and other time off. There were specific forms to complete for the reimbursement of expenses.
The question of whether Rondo would pay for Ms Chacon's civil engineering study was raised, Ms Chacon said, at the initial interview. Mr Tana said that if it were directly related to her employment there would be no problem.
The applicant said she was encouraged by Mr Byrne to commence a Bachelor of Engineering (Civil) at the University of Western Sydney. Mr Byrne told her that the respondent would meet her costs in relation to that study. She was also entitled to take time off to study and take classes, but the extent of that was in dispute. It appeared that she was required to make up some of that time. She commenced the structural engineering degree in March 2008. The applicant says that she approached Mr Byrne about payment of her fees, and that Mr Byrne told her to see Mr Tana. However, the applicant said that Mr Tana avoided her requests and that her university expenses have not been paid.
Mr Tana said that he received a proposal for Ms Chacon obtaining a Structural Engineering qualification (see attachment G, Ex 6), but that at no time did she receive a Training Approval Form for university fees. He said that had he received those forms, he would have approved them. He had no direct discussions with her about this.
Mr Byrne says that he raised the question of Ms Chacon's university fees in July 2008 with Mr Keen, and he was told that if there were a difficulty with the payment of the fees "up front", then Rondo would pay them and Ms Chacon would be reimbursed. However, Mr Byrne says he did not recall having any form submitted to him by Ms Chacon for reimbursement of her fees. He denied that she did so.
The question of university fees was dealt with by Mr Keen by saying that Ms Chacon did not at any time request that he sign an expense form or approval form for her university fees. He was aware that the policy was that the employee paid the fees and then were reimbursed by Rondo after the employee had passed. However, in practice fees were paid upfront on the basis that "Rondo will only pay for a subject once" and no reimbursement was available for a second enrolment. Mr Keen said that Mr Griffin and another employee would bring their university results to him along with their approval forms. He expected Ms Chacon to do the same, given that she was studying, but she did not do so.
Ms Strahan, in giving evidence as to Rondo's policies, said the rule about showing the results was a "non-documented rule". Ms Strahan also attached a number of training requests for approval and requests for payment submitted by Ms Chacon, all of which were paid. These included university texts, short courses, and her first semester 2008 application fee at UWS. There was no application for reimbursement of university fees.
Ms Strahan also attached training approval forms and invoices for training fees paid for other female employees, and those paid for Mr Griffin and another male employee. Mr Tana also provided the names of employees, both male and female, who had been approved for study leave.
The applicant said that two male employees were enrolled in courses of study, Mr Griffin and another person who was not named. The applicant says Mr Griffin's university fees were paid, with the implication that hers were not, because she was female.
There was no evidence provided to the Tribunal to show that Ms Chacon had, in fact, submitted any invoices from the University to Rondo, with or without any request for reimbursement. The only evidence which supports Ms Chacon's claim is the fact that Rondo did not, in fact, pay for the university fees.
The complaint is one of direct discrimination on the ground of Ms Chacon's sex (see point 2, Ex B). The Tribunal notes that a complaint relating to study leave was withdrawn by Ms Chacon.
Carer's Responsibilities
The applicant said that at the outset of her employment, or possibly at the interview, Mr Robinson told Mr Byrne and Mr Tana that she was "a single mum" and needed to start work at 6.30 am. This is, as noted above, partly confirmed by Mr Byrne who recalled a statement as to her being a "single mum", but not as to needing to start work at 6.30. Mr Tana does not recall Ms Chacon mentioning the need to start early because of her son at the interview, nor does he recall any conversation at any time regarding a need for flexibility. He denied having any conversations with her in which she specified working hours between 6.30 am and 4.30 pm because of her carer's responsibilities.
Mr Byrne said that the issue of starting early was raised in late 2007 by Ms Chacon, who asked to start early since she dropped her sister at TAFE and it was convenient to continue on. Mr Byrne gave her permission to do so "provided it works out". He said that she did not mention the requirement of caring for her son.
Ms Strahan gave evidence that Ms Chacon told her she was going to the gym in the morning before work. She also indicated that she dropped her son at swim training at 5 am and came on to work.
On 8 August 2008, the applicant said her hours of work were changed from the previously agreed 6.30 am to 4.30 pm to 8.30 am to 5 pm, "excluding my university hours which I also needed to make up". She said to Mr Keen that she could not work those hours, since she was a sole parent and flexibility in work hours were part of her employment. The applicant said that Mr Keen said, "If you cannot cope with my high expectations then you should leave". The applicant said that Mr Tana was present.
Mr Keen had a conversation with Ms Chacon in about October 2008 when she told Mr Keen she wanted to start at 6 am. He said that she needed to be available for work when the sales teams in Queensland, Victoria and New South Wales were working - ie, between 8 am and 5 pm. He said she did not say why she wished to start work at 6 am, and did not mention carer's responsibilities. He said he knew she had a son, and that he was in high school, but she did not know much about her private life and she did not raise it with him. He denied that he told her she needed to work between 8.30 and 5.30, and said that "she needed to work approximately 40 hours per week and that these hours could be made up between 8 am and 5.30 pm". He felt that she was not experienced enough to work unsupervised and tried to meet that by providing training.
Mr Keen denied bullying Ms Chacon in relation to her hours of work, and denied making the remarks about "having high standards; if you can't meet those standards you should leave". He said that that kind of remark was inconsistent with his management style. It should be noted here that in an email which is annexure H to Mr Keen's statement Ex.2, he said to Ms Chacon in relation to the bonus issue, "As you will find I have fairly high expectations, but I think it is equally important that people are adequately remunerated for their efforts" before offering a discussion with Mr Tana and himself to resolve the bonus issue. When questioned by the Tribunal about this, he conceded he used the words "high standards" but that he did not use the concluding words that the respondent "should leave".
The complaint is one of indirect discrimination on the ground of carer's responsibility (see point 3, Ex B0).
Bullying treatment
Elements of the claim of bullying are found throughout the applicant's evidence. This section deals with some specific allegations.
Mr Byrne said he spoke to Ms Chacon about her internet usage, in terms "it's best to get through your work not play Sudoku". He denied doing so in a "bullying" way.
On 12 August 2008 the applicant said that Mr Keen disciplined her "for paying a bill on-line". She said he repeated his "high expectations" comment and that comment was made only to her. He denies that he said this to her, and says that he had difficulties with her internet usage generally and not just on one occasion.
Mr Keen said that he spoke to Ms Chacon in September 2008 and said:-
"... when there's work to be done, you need to get the work done first. If there's time to spare, you can go on the computer and go on eBay. The first priority is to get the work done".
Mr Keen said that he had been watching Ms Chacon that morning and she had spent her first hour of the day on eBay, a claim which she denied. A report of Ms Chacon's internet usage was obtained by Mr Keen and it showed a considerable amount of private internet usage, which grew from the early days of her employment (when it was minimal) to an extensive amount of her time; more than half her internet time was spent on non-work-related issues (or "unproductive browsing"" as noted in the analysis produced by Mr Keen, annexure N to Ex 2). It should also be noted that the hour in which most hits were recorded was 1-2 pm.
While Ms Chacon withdrew her complaints relating to personal emails, the facts above extend beyond this area into other complaints by her of bullying, including "being shown no respect" and other aspects of her direct discrimination claims (see point 4 in Ex B). The "bullying treatment" complaint is not confined to any one issue but is found in a number of places throughout Ms Chacon's account of the relevant months reflected in the complaint period.
The bonus issue
The letter by which Ms Chacon was employed set out that her bonus would be up to 10% of her salary. Mr Tana recalled a conversation with Mr Byrne in which he recommended employing Ms Chacon, at the "mid-level bonus" and at a salary of $57,500. At the time the mid-level bonus had been increased (in or around June 2006) to 20% from 10%. Mr Tana said that he checked the salary level in the letter of offer, but not the percentage of the bonus.
It was conceded by Mr Byrne that the inclusion of the bonus level at10% was a mistake, and that Ms Chacon should have been on the 20% bonus level. Mr Byrne said that at the time Mr Lui was employed, Rondo did not have a dedicated HR Department, and that he drafted Ms Chacon's letter on the template of Mr Lui's letter of offer, which in turn was drafted on the template of his own. His own bonus was increased up to 20% at some point, probably after June 2006 in accordance with the general mid-level increase. The percentage mistake was not picked up in the bonus round of 2008.
Mr Byrne was not the person who approved bonuses; that was done above his level. He did, however, provide a recommendation, and a breakdown of her bonus up to 10%, and senior management made the decision as to what she would receive.
On 13 August 2008, employees received their "STI" or "KPI" bonuses. An STI bonus was a short term incentive bonus and a KPI bonus was a key performance indicator bonus. The applicant said in her evidence in chief that she was not paid a bonus, and that she queried it with Mr Keen. The applicant was distressed that she was not paid a bonus, and she received a letter from Mr Keen on 14 August 2008. Mr Keen sent her an e-mail on Friday 15 August 2008. She then had a meeting with Mr Keen and Mr Tana, at which meeting she says that they told her she had been "left off a list". The applicant said that she was told that her letter of offer did not note the correct KPI bonus, and that she had received the "company bonus". It was clear that Ms Chacon had in fact received a bonus, but there was an issue which was dealt with at some length regarding the bonus to which she was actually entitled.
Ms Chacon was notified that she would be included in the mid-range STI bonus list for 2008 (and thus would have received the higher bonus on the next round had she stayed with the respondent). Mr Lui was also on this level of bonus.
The applicant said that when she queried the discrepancy of her bonus. Mr Tana said to her "as a female, you are entitled to 10% of your base salary, and not entitled up to 20% of your base salary as previously stated." Mr Tana denies saying this.
Mr Keen said that after Mr Byrne resigned he raised her review with her in July 2008. Together they worked on her KPI review and assessed her at 54 per cent (noting that Ms Chacon assessed herself at 50 per cent). Half of the bonus was performance based, and half was a financial component; if the company made budget, that part of the bonus would be paid. Ms Chacon received a net bonus of $1,445.43. The letter providing her bonus (dated 14 August 2008, from Mr Keen) said:-
"Many thanks for your contribution to a year which resulted in an outstanding financial outcome for the consolidated business".
It was clear that there was an error in the payment of Ms Chacon's bonus, and that the "financial component" was not included in it. Nor was her bonus calculated at the 20% rate at which some other employees at her level had been employed (see email 20 August 2008 from Mr Keen to Ms Chacon, which said:-
"We herewith confirm that for the year ending June 2008 you were not included in the mid level Short term Incentive (STI) bonus scheme. As per your letter of appointment dated 30 May 2007, you are part of a special KPI Bonus scheme in which can earn up to 10% of your base salary as mutually agreed.").
See also Ms Strahan's statement Ex 11.
It was Mr Keen's view at that time that the bonus was not too low, since he had just recently written the letter pointing out the discipline issue with Mr Byrne, but since she was unhappy he sought to ameliorate the situation by providing her with $1,000 in shopping vouchers. This was explained in evidence as being a tax-effective way of providing benefits to employees on an ad hoc basis. She refused that offer.
Mr Keen had further discussions with Ms Chacon which he viewed as Ms Chacon saying, without much conviction, that she was happy with the bonus. In about June 2008 Mr Keen put Ms Chacon forward to the Group General Manager for the mid-level SSTI bonus. On 26 August 2008 he emailed her to confirm officially that she was on the mid-level STI scheme which enabled her to earn up to 20% of her base salary as a bonus.
Ms Strahan noted that Mr Griffin was not entitled to a 20% bonus, nor was another engineer in Research and Development. She said that Mr Lui became entitled to the 20% level when he moved to Queensland, but before July 2007 he was on a 10% bonus. She gave evidence of a number of female employees who were on the 20% level.
In Ex 11, Ms Strahan noted (at pars [25] and [26]:-
"25. If Ms Chacon had been paid up to 10% of her base salary as she should have been in her contract, on the basis that the financial component of the Mid Level Bonus was maximised due to Rondo's over target profit performance, Ms Chacon's financial component (if her bonus had been calculated correctly) is likely to also have been a full 5% of her salary, being $2,875. This means she was underpaid by at least $575 of her salary (subtracting the amount that she was actually paid ... from the amount she should have been paid).
26. If Ms Chacon had been assessed in line with the Mid Level Bonus of 20%, she would have been entitled to $5,750 as the 10% financial component of the bonus."
As to the calculation of the KPI proportion of the bonus, Ms Chacon was assessed at 54%. Thus, she should have received, had she been paid the proper calculation of the 10% bonus:-
a)KPI bonus; 54% of 5 per cent of her salary; $1,552.50; and
b)Financial performance component; 5 per cent of her salary; $2,875.00.
Those figures are of course subject to superannuation and taxation calculations.
in cross-examination, Ms Chacon agreed that the 10% bonus she had been offered on commencing work was a mistake.
The complaint about the bonus is one of direct discrimination on the ground of Ms Chacon's sex (see point 5, Ex B).
Elements which the applicant must prove - direct discrimination
The applicant is required to show that
a)she was treated less favourably by the respondent than the respondent would have treated a person of the different sex in the same or similar circumstances; and
b)a reason, or ground, for her treatment was her sex.
The treatment must be objectively less favourable for it to be differential treatment (see Commissioner of Corrective Services v. Aldridge [2000] NSWADT 5 at [40]. Causation was considered by the High Court in Purvis v. State of New South Wales (2003) 217 CLR 92.
The applicant put forward Mr Lui as a proper comparator. The respondent agreed that Mr Lui was appropriate, but not in 2008 when he was a Level 15 employee, but in 2007 when he was working in Sydney and was a level 14 employee.
The applicant's submissions
Ms Chacon's submissions were, probably by reason of her being self-represented, somewhat succinct, but the case she sought to make can be divined from the type of evidence which she gave, the particulars provided, her comments on the respondent's evidence and the original complaint (all of which is summarised at length above).
Ms Chacon submitted that Mr Lui was provided with work tools that she was not provided with, and that she was performing her duties without a laptop, a camera and a car allowance (or a company car).
In relation to carer's responsibilities, Ms Chacon said that Mr Byrne admitted that she was originally allowed to come in earlier so that she could be home by 6 pm, and that Mr Keen changed the hours.
As to the bonus, it was submitted that it was such a clear error "you would think they would pick it up".
Ms Chacon submitted that the bullying treatment could be inferred from the bulk of the evidence. The men, she said, were not told they could not speak to other people (and an example was given that she was told to work at her desk and not to chat to people in accounts).
Ms Chacon put forward Mr Lui as a comparator for her direct discrimination claims. Mr Lui did not give evidence. However, there was a deal of evidence about his working conditions. He was a fully qualified civil engineer and ran the Queensland office (or at least that part of which reflected his area of work). He was, according to Mr Keen, "able to undertake design tasks of a more complex nature, and required far less supervision, than Ms Chacon. Additionally, Mr Lui was able to undertake site inspections".
Ms Chacon pointed in submissions to the fact that Mr Byrne agreed he treated Mr Lui differently.
Ms Chacon puts forward Mr Griffin as the "pool" of persons who were not required to comply with the conditions she was required to comply with, and who did not have carer's responsibilities.
Mr Griffin was an Under Graduate Technical Services Engineer who was employed by Rondo on 17 September 2008. His hours of work were 8am to 4.30 pm with a half-hour lunch break.
Mr Griffin did not give evidence, but it appeared to be not in contest that he did not have carer's responsibilities. The "condition or requirement" with which she had to comply was to be in by 8 and leave before 5 pm. It was submitted that this was a condition with which propoprtionally more persons without carer's responsibiliies could comply than persons with carer's responsibilities, particularly those with responsiblity for school-aged children.
The respondent's submissions
The respondent put in written submissions which became Ex 12.
The respondent submitted that the applicant had "unreasonably-held perceptions" about her treatment by the respondent. It was submitted that the treatment of the applicant was reasonable given a number of factors about her conduct during her employment, including her internet use, her gross exaggeration of her mileage in the claim dealt with by Mr Keen (and those approved by Mr Byrne before him), her significant personal use of the work mobile phone, and her difficulties in working with Mr Byrne before he resigned.
In relation to particular issues of direct discrimination, the respondent submitted:-
a) the evidence was that the mobile phone was voluntarily returned, and in any event the vast majority of calls on the phone were personal, mostly to Mr Robinson;
b) the car use claim was reasonably refused because of the objective overstatement of kilometres on it;
c)there was in fact a salary review and a salary increase;
d)the camera was owned by Rondo, and was used by Mr Keen, a member of her department, for his work in Malaysia;
e)the university fees were not paid because the fees were not sought from the respondent. Some education and training expenses were claimed, and these were paid;
f)the "bullying treatment" alleged by her, even if made out (which it was submitted they were not) had to be shown by the applicant to have been made because she was a woman, and that a man in the same or not materially different circumstances would have been treated the same way. The respondent submitted that many of the particulars of treatment the applicant put forward as "bullying", such as the direction to work rather than playing Sudoku or browsing EBay, and the terms of the warning letter, were in fact a reasonable direction in employment.
g)the "warning letter", it was submitted, was clearly not discriminatory because it was given to both Mr Byrne and Ms Chacon in identical terms; it was not "bullying" because it was a reasonable response to a staff issue and not based on sex;
h)the "breach of confidentiality" which arose by Mr Tana and Mr Keen becoming aware of the complaint to Mr Bertuch could not, even if it constituted such a breach or an incidence of bullying, be sheeted home to Rondo, as Mr Bertuch did not work for Rondo, but for its parent company;
i)she was not treated differently in relation to the bonus in that Mr Byrne and Mr Lui were employed on the ten per cent bonus when they started work, and that she was recommended, along with men (and a woman) in her department, for the 20% bonus level for 2008/9. Other women in her department were paid 20% in the year she was paid on the basis of a 10% bonus;
j)Ms Chacon and Mr Lui were not treated differently in relation to the bonus (when Mr Lui was at the same level as Ms Chacon); in fact they were each:-
(i) underpaid the bonus;
(ii) paid as a level 14 employee; and
(iii) not paid to 10%, but paid as per lower-level employees.
k)The evidence is that there were two errors compounding the bonus payment, which errors were not, it was submitted, made on the basis that the respondent was a woman, but through an initial error as to the level of the bonus, and then not properly calculating the entitlement of the employees to the financial component and the KPI component.
The respondent submitted in relation to the indirect discrimination claim, that the applicant's evidence did not:-
a)provide particulars as to the nature and extent of her carer's responsibilities to the respondent, beyond noting that she was a "single mum";
b)request the change in hours to accommodate any such responsibilities.
The respondent further submitted that the applicant was not able to give evidence as to how male employees were or might be treated in relation to:-
a)use of a personal car for work purposes and subsequent reimbursement;
b)excessive internet use at work;
c)excessive personal use of a work phone;
d)possession of a camera; and
e)excessive travel claims.
The respondent made submissions that no complaints had been made by her of discrimination during her employment, or in the worker's compensation claim she made. The applicant agreed in cross-examination that she had not left because of discrimination; she said that she had left because of bullying by Mr Tana. She agreed that she did not take up the opportunities to discuss her complaints with the respondent before her employment was terminated.
As to the comparator, the respondent submitted (as noted above) that Mr Lui failed to be a proper comparator when he left Sydney and took up additional responsibilities in Queensland.
Consideration
As noted above, each of the persons who gave evidence were cross-examined. It is clear that Ms Chacon was very unhappy with her treatment by the company, and that she blamed Mr Tana, Mr Keen and Mr Byrne for this treatment. That unhappiness, it is the view of the Tribunal, fed into her perceptions of her treatment and led to her being unhelpful or evasive when faced with direct propositions about which there could be little doubt (for example, as to whether Mr Bertuch worked for CSR and not Rondo, a proposition with which she declined to agree). The witnesses for the respondent generally appeared to be trying to tell the truth, and while there was some departure from the others at times, the facts were generally corroborated where it was possible to do so. Ms Strahan did appear to be taking somewhat of an advocate's role in giving her evidence, but the relevant evidence she gave was corroborated by documentary evidence.
Against Ms Chacon's complaint, it must be said that the issue of differential treatment on the grounds of sex, and the question of indirect discrimination on the ground of carer's responsibilities, did not feature significantly or at all in her complaints about her treatment up until her lodgement of the Anti-Discrimination Board complaint. Even that complaint indicates that she was concerned that she had been "bullied and constructively dismissed" as well as "discriminated against" (see Ex A, p 16). Her complaints often go against the emails she sent Mr Robinson, and her defences (such as "everybody did it" in relation to the mileage claims) occasionally did not do her credit.
There are a number of areas in which the evidence reveals that the complaints by the applicant cannot be made out. These are:-
a)failure to provide a salary review (it was clear that she did have a review, and that her salary was increased on 14 July 2008);
b)failure of the applicant to lodge claims for the university fees. The evidence is all one-way that no claims were lodged, as is demonstrated by the provision by the respondent of claims that were lodged and paid, and the inability of the applicant to show any paper trail at all that she lodged her university invoices with the respondent.
The issues as per the Agreed Issues.
The first issue is:-
"whether the respondent breached ss 25(2)(a), 25(2)(b) or 25(2)(c) of the Act, and as defined in s 24(1)(a), by not providing her with tools (such as a laptop, a camera and a mobile phone), and in relation to her use of her private car, being a complaint of direct discrimination on the ground of sex"
This issue requires findings that by not providing her with tools, and in her treatment in relation to her use of the car, she was treated less favourably than the respondent treated or would have treated a man in similar circumstances, and that that treatment was on the ground of her sex.
The Tribunal accepts that the proper comparator is Mr Lui, not when he was in the Queensland office with higher responsibilities (a level 15 employee), but when he was working in Sydney in the role occupied by the applicant (at level 14). He did not have a laptop at that point, nor did he have a designated camera (although he had both when he moved to Queensland). There is no evidence about his mobile phone. In any event, the Tribunal finds that the applicant voluntarily gave her mobile phone back.
There is also no evidence that Mr Lui was treated any differently from Ms Chacon in relation to kilometre charges for any private car use. The decision to provide Mr Lui with a company car, and any failure to provide Ms Chacon with one, was one made on grounds which had nothing do with Mr Lui's or Ms Chacon's sex, and there is corroboration for the grounds upon which that decision was made between the various persons who made it (Mr Byrne, and Mr Tana). Where there is no evidence as to Mr Lui's circumstances, then the Tribunal must have regard to the notional comparator, and there is nothing to indicate that the conduct of the respondent would have differred in relation to a notional comparator in these areas.
There can be no discrimination in the refusal to sign off on travel expenses given the clearly excessive claim that was made, and the applicant's tacit acceptance that it was excessive. It is the Tribunal's view that this complaint stems more from the applicant's unhappiness about the distance she was putting on her car getting to and from work, a concern raised by Mr Robinson on her behalf in emails, rather than any well-founded belief of discriminatory treatment.
The complaint, as it relates to the first issue, should be dismissed.
The second issue is:-
"whether the respondent breached ss 25(2)(a) or 25(2)(b) of the Act in relation to payment of university fees, being direct discrimination on the ground of sex".
Again, the applicant needs to show, in relation to the proper comparator, that any differential treatment was on the grounds of her sex.
As noted above this claim should be dismissed because:-
a)those claims that were made were paid; and
b)the Tribunal has found as a fact that the applicant did not lodge the claims the subject of this complaint.
The third issue is:-
"whether the respondent breached ss 49V(2)(a) or 49V(2)(d) of the Act, and as defined in s 49T(1)(b), in relation to the applicant's responsibilities as a carer, and in changing her times of work from 6.30 am to 4.30 pm, to 8.30 am to 5.30 pm, being a complaint of indirect discrimination on the ground of carer's responsibility".
The determination of this issue is not assisted by the existence of any agreed facts.
The requirements, in these circumstances, of a finding of indirect discrimination are:-
a)that the applicant had carer's responsibilities within the definition of s 49S of the Act (see s 49S(2)(a));
b)that the respondent required her to work the hours 8.30 am to 5.30 pm;
c)that the requirement was one with which a 'substantially higher proportion of people who do not have [carer's] responsibilities' were able to comply; and
d)that it was unreasonable in the circumstances.
There is not much evidence about whether in fact Ms Chacon had carer's responsibilities. She has a son who is at high school, and she said in evidence that she needed to pick him up from school. There was indirect evidence that she dropped him at swimming early and that currently he was looked after by relatives while she was working or studying and he was not at school. The Tribunal is prepared to accept on the evidence that during the relevant period and stretching before that to the commencement of her employment, Ms Chacon had carer's responsibilities, but the extent of those responsibilities remained unclear.
There is an evidentiary conflict about whether Ms Chacon notified the respondent about her carer's responsibilities. The Tribunal finds that she did tell those at the interview that she was "a single Mum" and from that it can be inferred that she had responsibilities which would be greater than a parent with a partner.
There is likewise a conflict as to whether the respondent imposed the later working hours requirement upon her. Mr Byrne's evidence was that the respondent requested that she be allowed to start early, and he said that that was fine "as long as it works out". He says she did not mention her carer's responsibilities at that point. Mr Byrne said he did not change her working hours. Mr Keen, likewise, says he did not change her working hours. He says he had a discussion with Ms Chacon about her hours but that this was in relation to study leave (a matter that was not pursued at hearing).
In the face of the conflict, and the lack of any written corroboration, the Tribunal needs to ascertain where the more likely version of the truth lies. Circumstantial corroboration of the respondent's version appears in Exhibit G and the swipe card access which shows that the applicant did not, it is fair to say, have any real pattern in her comings and goings. On the other hand, an email the applicant wrote to Mr Robinson (who was not, it should be recalled, working for the respondent) records her frustration with Mr Keen's directions as to her start and finish times. On 8 August 2008 the applicant wrote:-
"I'm leaving at 10 am today, hey CK just said that we (Dane and I) can start work anytime and leave anytime as long as it's within reason This came up when Dane just walked in and said sorry I'm late... I said no you don't start till 8.30 am and he said no I start at 8 am ... so I turned to CK and said that I thought that we couldn't start early and he said no you can start at 7.30 am if you want and I said but you said we couldn't start early because no one else does in Australia that we work with and he said no if you want to and its reasonable then it's ok ... what a shit! Why do you think I joined a gym .. to waste my morning times cause he said I couldn't start work early!!! Man this is ridiculous! They just change the rules to suit all these guys ... F*ck this place shits me ... remember when he kicked up that big stink about me starting at 6.30 and leaving at 4.30pm ... blah blah and the final say was my times were 8.30-5pm and I have to do my overtime for uni on top of that!!! it's so obvious that they are playing games with me and are pushing me to leave".
The email, written as it is on the day the applicant contends in her complaint that the "direction" as to her start times was given, is inconsistent with a requirement that the applicant work between 8.30 am and 5.30 pm. Indeed, the email indicates that if such a direction were given, it was rescinded as at 8 August 2008. It is also consistent with the applicant wishing to use the gym in the mornings rather than to carry out her carer's responsibilities.
On the facts that are available, therefore, it appears to the Tribunal that there was in fact no direction or requirement that the applicant commence work at 8.30 and end at 5.30.
In those circumstances, it is not necessary to assess whether the condition, if it were imposed, were reasonable. However, the test of "reasonableness" is less demanding than one of necessity, but more demanding than a test of convenience; see Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 approved in Amery v. NSW [2004] NSWCA 404 at [77] (in relation to s 24(1)(b) of the Act which is in relevantly identical terms to this section). It is the Tribunal's view that were it necessary to decide this point, the requirement to tailor Ms Chacon's hours was a reasonable one, given that her work was given to her by sales representatives and she was required to be on hand to liaise with them and answer their queries.
There was no evidence as to the "pool" of persons against whom the substantially higher proportion of people able to comply with the condition should be judged. Ms Chacon indicated that Mr Griffin was indicative of the kind of person the Tribunal should take notice of in this regard, given that he worked similar hours and was not a person with carer's responsibilities. She also suggested Mr Lui. However, as noted, there was very little evidence which would allow the Tribunal to make a determination on this ground if it were required to do so.
The claim of indirect discrimination should be dismissed.
The fourth issue is:-
"whether the respondent breached s 25(2)(c) of the Act, and as defined in s 24(1)(a), in relation to "bullying treatment" (threatening dismissal, phone calls, being shown no respect and being yelled at, having what she said ignored, being punished for doing work directed to perform, KPI discussions and not keeping the Applicant's complaint confidential), being a complaint of direct discrimination on the ground of sex".
The applicant agreed that she spent about 25% of her computer time doing non-productive web browsing. On the basis of her own comments in emails to Mr Robinson, and her mobile phone usage records, there is no basis to assume that in the relevant period she was working hard. Mr Keen gave evidence that he could see her computer screen from where he sat and he often observed her not doing her work. The claims of being punished for doing work she had been directed to do was effectively, although not formally, abandoned by the applicant in cross-examination.
As noted above, the complaint of not keeping her complaint to Mr Bertuch confidential is nullified by the fact that Mr Bertuch did not work for Rondo, and there is no evidence that the content of the complaint went anywhere but from Mr Bertuch to Mr Tana and Mr Keen. Ms Strahan knew about the fact of the complaint, but that is hardly a breach of confidentiality, given that Ms Strahan was the relevant person in HR.
There is little evidence that the applicant was "yelled at", and the respondent's conduct in late 2007 and early 2008 (before the relevant period) in arranging mediations to sort out her difficulties with Mr Byrne rather tends against such basic indignities. Nor is there any evidence that she was being "punished" - she was not required to pay back her mobile phone excess usage charges, she was given a bonus (albeit less than what she may have been entitled to) when Mr Byrne was not, due to his warning letter, and she was given a pay rise and a pay review.
There are no particulars given as to what "KPI discussions" might entail and this ground was effectively abandoned, or alternatively subsumed into the matter of the bonus.
Accordingly, the Tribunal finds that Ms Chacon was not bullied by the respondent. There can, as a result, be no finding that she was discriminated against by provision of the bullying treatment.
The fifth issue is:-
"whether the respondent breached s 25(2)(b) of the Act, and as defined in s 24(1)(a), in relation to the amount of the applicant's bonus, being a complaint of direct discrimination on the ground of sex."
The bonus issue is, perhaps, factually the most difficult of all issues to ascertain. What is clear is that an original mistake by Mr Byrne in 2007 impacted upon the payment of the bonus in 2008. A further mistake meant that Ms Chacon did not receive the mid-level bonus calculated on the financial performance component, but instead received a lower level bonus. Mr Lui was similarly underpaid when he was a level 14 employee.
The respondent pointed to the steps taken by the respondent to rectify the underpayment when it was examined (although it is fair to say that the real circumstances did not come to light until the matter was investigated at hearing). The response was to offer shopping vouchers up to $1000 to make up the difference. This was said to be the usual practice when tax-free benefits were sought to be provided to employees and contractors (who are, it was said by Ms Strahan, mostly male).
The Tribunal is of the view that the mistakes made were not made deliberately, nor were they made "on the grounds" of her sex. Mr Byrne's evidence of how the 10% came to be in the employment letter is credible and fits with Mr Lui's situation, and the mistake in payment was made with regard to Mr Lui as well. While the Tribunal was concerned that Ms Chacon clearly did not receive her entire entitlement, there is no basis for a finding that the conduct of the respondent in calculating her bonus was on the basis of her sex.
Accordingly, this part of the complaint should be dismissed.
Finding on the Claim
The complaint should be dismissed.
Costs
The respondent sought to be heard on costs. We note that the Practice Note no 22 on Costs requires:-
9. Application for costs
Parties should tell the Tribunal and the other party that they will be applying for a costs order as soon as they become aware of circumstances which justify an order for costs. If the matter goes to hearing and the application for costs is pursued, the person applying for costs should file and serve a precise statement of the amount of costs actually sought and its components.
Parties are encouraged to advise the Tribunal at the conclusion of the hearing if they wish to make an application for costs. Any such application should be made at the time, even if that application is based on an assumption as to the outcome of the proceedings. The Tribunal will determine the application in the reasons for decision.
Parties are not encouraged to apply for costs after receiving the reasons for decision. Such an application leads to unnecessary delays in the finalisation of the matter. If such an application is made, it should set out the reasons that an application for costs was not made at the conclusion of the hearing. The Tribunal may list the application for an oral hearing or determine the application 'on the papers' that is, without a hearing (see s 76 of the ADT Act).
One aspect of costs was brought specifically to the Tribunal's attention. That was the costs of a summons for production. The respondent sought documents from the applicant as to her bank records, Centrelink payments and the like. Those documents were eventually produced at a Case Conference but the respondent had already been put to the cost of producing a Summons and serving it.
In support of that contention was Ex 7, an affidavit from the solicitor acting for the respondent. That affidavit noted the series of requests made by the respondent and the responses to those requests by the applicant.
The general rule is that each party pay their own costs (see s 88(1) of the Administrative Decisions Tribunal Act) unless the Tribunal is satisfied it is "fair and reasonable" to do so having regard to the factors listed in s 88(1)(A). The respondent argued that:-
a)the applicant could have provided the documents voluntarily; and
b)the applicant should have provided the documents voluntarily after agreeing to do so; and
c)the applicant has still not produced all documents sought in the Summons.
In Neeson v Director General, New South Wales Department of Education and Training (No 2) [2010] NSWADT 92 the Tribunal examined s 88(1A), in particular sub-section (a) dealing with the respondent being put to "unfair disadvantage", and in determining that issue took into account the fact that the applicant was not represented. That is the case in these proceedings. It seems to the Tribunal that it the respondent has not been "unfairly disadvantaged" given the prompt production of most of the documents after the Summons was in fact issued.
This is not a case where there is a clear answer either way. The onus is on the respondent to show that the Tribunal should depart from the usual rule and it has not here done so.
Accordingly, there will be no order as to costs in relation to the Summons. If any other order to costs is sought, the parties should comply with the Practice Note as set out above.
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Decision last updated: 06 April 2011
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