Chau v Oreanda Pty Ltd
[2001] FMCA 114
•16 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAU v OREANDA PTY LTD & ORS | [2001] FMCA 114 |
| HUMAN RIGHTS – racial discrimination – denial of sick leave and dismissal – no racial element in decision by respondents. |
Federal Magistrates Court Rules 2001
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Racial Discrimination Act 1975 (Cth), ss.9(1), 9(1A), 9(2), 10(1), 10(2), 15, 18C
Oshlack v Richmond River Council [1998] HCA 11
| Applicant: | BRIAN CHAU |
| First Respondent: Second Respondent: | OREANDA PTY LTD trading as Blue Cross Medical Centre (ACN 056 781 483) BRETT GOOLEY |
| File No: | SZ198 of 2001 |
| Delivered on: | 16 November 2001 |
| Delivered at: | Sydney |
| Hearing Dates: | 3 October 2001 & 16 November 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant in Person |
| Solicitor for the Respondents: | Maurice Marshan, Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs of the proceedings in accordance with the Federal Magistrates Court Rules noting that the respondents are entitled to stage 1 costs, stage 5 costs for a one day matter, and stage 6 costs for two full day hearings, and disbursements.
The costs awarded pursuant to Order (2) be paid within 28 days.
These orders may be entered pursuant to Order 36 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ198 of 2001
| BRIAN CHAU |
Applicant
And
| OREANDA PTY LTD trading as Blue Cross Medical Centre (ACN 056 781 483) |
First Respondent
BRETT GOOLEY
Second Respondent
DIANNE DIGBY
Third Respondent
REASONS FOR JUDGMENT
Introduction and background
This ex tempore judgment relates to an application by Mr Brian Chau, under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”), alleging unlawful discrimination contrary to the Racial Discrimination Act 1975 (Cth) (“the RDA”). The application followed a complaint made by Mr Chau to the Human Rights and Equal Opportunity Commission (“HREOC”) on 15 June 2000. On 12 February 2001, the President of HREOC notified Mr Chau of the termination of the investigation into that complaint and gave reasons for her decision. Mr Chau's application to the Court, which was made initially to the Federal Court, was made within time. That application was transferred to this Court on 20 April 2001, on the orders of his Honour, Emmett J.
In his application, Mr Chau claimed that the following sections of the RDA had been breached: ss. 9(1), 9(1A), paragraphs (a), (b) and (c), 9(2), 10(1) and 10(2). It became apparent at the trial of this matter that, in fact, the allegations made by Mr Chau amounted to a claim of discrimination contrary to s. 9(1) of the RDA and perhaps, more particularly, to alleged breaches of s.15 of the RDA. It is clear from the complaint made by Mr Chau and the material supporting his application to the Court that there were three incidents which supported the allegation of discrimination.
The first was a refusal to pay Mr Chau sick leave, notwithstanding that another employee, a Mr Hughes, had been paid for time off in what Mr Chau regarded as similar circumstances. The second was Mr Chau's dismissal from his employment with the first respondent, Oreanda Pty Limited. A third allegation concerned an alleged racist remark made by the second respondent, Dr Brett Gooley. That third element involved an alleged breach of s.18C of the RDA which Mr Chau indicated, in his initial affidavit supporting his application, that he was not intending to pursue. Nevertheless, he did seek to pursue it on the first day of the trial of this matter. After hearing from Mr Chau, and Mr Marshan for the respondents, I decided that I would not permit Mr Chau to pursue his claim insofar as it related to an alleged breach of s.18C of the RDA. My reasons were that that element of the claim had effectively been abandoned and no evidence had been led by affidavit in support of it.
The applicant’s case
Mr Chau's application is supported by his own affidavit, filed 6 March 2001, and by a further affidavit which was filed on 20 June 2001. In addition, Mr Chau tendered a number of documents which I accepted as exhibits. Mr Chau was cross-examined on his affidavits at some length. He adhered to the essential elements of his evidence but did make some significant concessions; perhaps, most importantly, concessions that he could not point to any particular incidents referred to in his evidence as having a racial connection.
I found Mr Chau to be a sincere and honest witness and a person who, I concluded, sincerely believes that he has suffered wrong at the hands of the three respondents: Oreanda Pty Limited, trading as the Blue Cross Medical Centre, Dr Brett Gooley and Dianne Digby, an employee of the centre.
The respondent’s case
The respondents have each filed defences to the application in which they deny that there has been any discrimination contrary to the RDA. The respondents relied upon affidavits from Linda Mae White, filed on 29 May 2001, who is the person who occupied the position formerly held by Brian Chau, following his departure; an affidavit of David John Hughes filed on 29 May, 2001 (David Hughes was the person who, in Mr Chau's mind, was granted paid leave in a circumstance that Mr Chau should also have received the same treatment); Brett Raymond Gooley, filed on 29 May, 2001 (Dr Gooley is the second respondent in these proceedings); and Dianne Digby also filed on 29 May, 2001. Ms Digby is the third respondent in these proceedings. Dr Gooley and Ms Digby were each cross-examined on their affidavits by Mr Chau. The deponents David Hughes and Linda White were not cross-examined although Mr Chau was given the opportunity earlier in the proceedings to require them to be present for cross-examination.
I found both Dianne Digby and Brett Gooley to be honest and reliable witnesses who gave evidence to the best of their recollection in relation to the events which have led to this application to the Court.
Consideration of the issues
The relevant facts in this matter are that the applicant was employed by the first respondent from 15 March 2000 until 9 June 2000 as a payroll officer and accounts clerk. The contract of employment between the parties provided for a three month probation period, during which the applicant was not entitled to paid sick leave. Towards the end of the probationary period, in the period 15–28 May 2000, the applicant applied for two days paid sick leave. The application was refused. The third respondent was involved in the making of that decision, although the second respondent made it. The applicant and the third respondent had several disagreements during the course of his employment and on several occasions the applicant sought the intervention of the second respondent. The applicant and the second respondent became, independently, dissatisfied with this state of affairs. On 2 June 2000 the applicant left a letter of resignation for the second respondent. Before seeing it, however, the second respondent directed the third respondent to give the applicant notice of termination of his employment, effective on 9 June 2000.
It has throughout the proceedings been my view that the case was essentially a simple one. The case has taken two days to hear. That is partly due to the need on the first day for Mr Chau to work through an interpreter, and partly due to the extensive material filed and the need to cross-examine on that material. Nevertheless, I think it is important that the breadth of the material filed and the breadth of the examination and cross-examination of that material should not obscure the essential simplicity of the issues before the Court. Having dealt with the s.18C matter previously, there are only two issues: was Mr Chau discriminated against when he was refused paid sick leave, and was Mr Chau discriminated against when he was dismissed from his employment?
There is no dispute of fact that those two events occurred. There are disputes of fact in relation to a number of matters of detail in the evidence: whether a particular meeting took place at a particular day, whether a particular letter was or was not seen by a particular person, but I think those are peripheral to the issues that are before me for decision. There is no dispute that Mr Chau was denied paid sick leave. There is no dispute that Mr Chau was dismissed from his employment, notwithstanding that he did purport to resign at or about the same time. The fact is that there was a dismissal and that it was the dismissal which it appears was finally acted upon by the parties.
The evidence for Mr Chau is at best inconclusive as to what were the reasons for these two acts. As was pointed out forcefully by Mr Marshan, Mr Chau in the evidence he presented to the Court, could not point to anything prior to his complaint to HREOC, which raised a specific allegation of racial discrimination. Mr Chau in his submissions to the Court indicated that this was because first, he himself could not point to persuasive evidence at least prior to that time that there was racial discrimination, and would not make an unsubstantiated complaint. Secondly, and I think this was probably a point made by both sides, Mr Chau developed a greater concern about these events as time passed, particularly after he became aware of the reason given for his dismissal. That reason was that he was unable to cope with some of the duties of his position.
Mr Chau presented evidence intended to show that he was a good employee with a good service record and someone who should objectively have been valued. Therefore in his mind, there must be some other reason for his dismissal and perhaps by extension some other reason for his denial of paid sick leave apart from the reasons which had been given, and the only other reason which it appears has suggested itself to Mr Chau is his race.
The material presented on behalf of the respondents indicates that in fact the reality of the position is somewhat different. As regards the issue of the refusal of paid sick leave, there is evidence that Mr Chau was not entitled to paid sick leave because he was under probation. That is not disputed. Mr Chau's concern has been that another employee, David Hughes was similarly not entitled to paid sick leave, but nevertheless received special consideration by Dr Gooley at the same time as Mr Chau was refused that consideration.
Under cross-examination and under questions from me, Dr Gooley explained that there were essentially three reasons for the difference in treatment. The first was that Mr Hughes held a more senior position with greater responsibilities. The second was that Mr Hughes was perhaps in a general sense a more valued employee in terms of performance than Mr Chau. A third reason was that on examination it appeared that notwithstanding advice that Dr Gooley had received from Dianne Digby, the award position of the two employees was not in fact the same, and that Mr Hughes was probably entitled to paid carer's leave in the circumstances.
I have some doubt as to whether Dr Gooley was truly aware of that distinction at the time he made the decision, but I am persuaded that there was nothing in the nature of race which motivated Dr Gooley to make the decision he did.
A fourth factor which Dr Gooley admitted bore on his mind at the time, was that the circumstances of the absence were quite different. Mr Chau had been unwell and that was an ordinary circumstance requiring sick leave. Mr Hughes had a child who had been taken seriously ill and was in hospital. That was an unusual circumstance and objectively a circumstance which might warrant some special consideration. That is a simple recognition of the different way that a supervisor or employer may react to different situations which are presented to him or her.
Mr Marshan also pointed out that Mr Hughes had made a personal telephone call to Dr Gooley to explain his absence so it was obviously a matter which was on his mind and which he was aware of at the time he made his decision, whereas the circumstances of Mr Chau's absence were in no sense so immediately before him. I conclude, therefore, that there is nothing sinister in terms of racial discrimination in that decision.
In relation to the termination the evidence presented to me indicates that Mr Chau was regarded as a valued employee by his previous employer prior to becoming employed by the first respondent and, indeed, that he was valued as an employee in some respects by Dr Gooley. There is, however, ample evidence that Mr Chau and Ms Digby had differences, and at times serious differences. To put it simply they didn't get on.
My assessment is that Mr Chau is a sensitive man who places pride in his work performance and who may react adversely to an attack upon his self-esteem. He is a person who, in the circumstances of conflict that he encountered, expected the ear of Dr Gooley. It is evident that he didn't receive it or he didn't receive it to the extent that Mr Chau felt he needed it. Dr Gooley is a busy man running a busy practice and a business and it seems to me that he didn't want to be bothered by the problems that Mr Chau was bringing to him.
It is not for me to say whether Dr Gooley was at fault in that. The conclusion I draw, however, is that Dr Gooley drew an adverse impression of Mr Chau quite unrelated to his race. Dr Gooley had after all hired Mr Chau after interviewing him himself but the sort of person that I think Dr Gooley wanted, a person who was able to perform the back room activities of the practice out of sight and perhaps out of mind of Dr Gooley as much as possible, was not the sort of person who Mr Chau turned out to be. He turned out to be a person who, in the circumstances, was fairly high maintenance.
I find that Dr Gooley determined that the situation was unsatisfactory and that he would have to terminate Mr Chau's employment. Dr Gooley frankly admitted under cross-examination that if Mr Chau had presented him with an offer to resign he would have willingly taken it. Accordingly, if, as appears not to have been the case, Dr Gooley had become aware of Mr Chau's written resignation before issuing his termination instruction it seems almost certain that there would have been no termination and Dr Gooley would have simply accepted the resignation.
Section 15 of the RDA provides that it is unlawful for an employer or a person acting or purporting to act on behalf of an employer to, relevantly, dismiss a second person from his employment by reason of the race, colour or national or ethnic origin of that second person. Mr Chau has not been able to present to the Court any evidence to suggest, let alone persuasively suggest, that there was a racial connection with the termination decision.
In the letter from the President of HREOC terminating the complaint the President pointed out that it is not sufficient for a complainant to establish that they have a particular race or a particular ethnicity and that they have been treated unfairly or unfavourably. A complainant and an applicant to this Court must establish that the unfairness or less favourable treatment derives from their race or ethnicity and that the two facts are not simply accidental.
That is what Mr Chau has been unable to do in this case. He is obviously a person of Chinese extraction. He was obviously treated less favourably than Mr Hughes. He was treated less favourably than other employees in that he was dismissed and other employees were not but the reasons for those decisions were reasons related to the circumstances in which the request for payment arose, the differences in the position and performance of the employees and not anything to do with Mr Chau's race. It follows in all the circumstances that I must dismiss Mr Chau's application.
On the question of costs, it is clear from the Federal Magistrate's Court Rules that I have a general discretion under part 21 to order costs and that costs can be ordered on a number of bases. It is also clear in human rights proceedings that there is no fundamental difference with any other proceedings before this Court or indeed other courts. The general rule is that costs follow the event. I have in human rights proceedings drawn attention to some exceptions to that general rule.
I have said that in my view applicants in human rights proceedings before the Court need some generous consideration where they are prepared to resolve the matter at an early stage in the proceedings so that the respondents are not put to the cost of a full hearing, especially noting that this is a relatively new jurisdiction which prior to the amendments to the legislation giving the Court jurisdiction, was a no cost jurisdiction before HREOC.
I have also indicated in previous decisions that where an application in the human rights jurisdiction of the Court raises a significant issue of public interest that, consistently with the High Court's decision in Oshlack v Richmond River Council [1998] HCA 11 it may be appropriate not to make any costs order. Neither of those considerations, however, is relevant in this case. The proceedings have run their full course and a fairly lengthy course at that and there is no significant element of public interest in the case.
Accordingly, the successful respondents are entitled to their costs in accordance with the ordinary principles, unless either they have done something to disentitle themselves to an order for costs or unless they are, as Mr Marshan suggests, entitled to their costs on the higher indemnity basis. Clearly, there is nothing before me to suggest that the respondents have done anything to disentitle themselves to an order for costs. The proceedings have been fairly resisted by Mr Marshan and properly so.
Mr Marshan has advanced circumstances which in his submission support an order for costs on an indemnity basis. I am, however, cognisant of the fact that we are dealing with an unrepresented litigant and an unrepresented litigant may be misguided without being culpable. There is, in my mind, a clear distinction which I averted to earlier in argument between a litigant who sincerely but wrongly believes that they are entitled to relief and for whatever reason pursues the matter to the bitter end and a litigant who maliciously or for some ulterior motive commences proceedings and pursues them to the bitter end.
I have in another proceeding in the human rights jurisdiction awarded indemnity costs against an unsuccessful applicant where I concluded that the litigant, who was in fact represented in that case, had taken the proceedings knowing them to be baseless for a malicious reason. The situation here is different. We are, in my mind, dealing with a litigant who, notwithstanding that he received advice, is misguided but who has convinced himself of the rightness of his cause. To my mind this situation does not call for costs on an indemnity basis. It calls for an award of costs on the basis which ordinarily applies in the Court.
This Court operates in general on a fixed event base cost scale set out as a schedule to the court Rules. The effect of the application of those rules in this case would be that the respondents are entitled to the following costs: first, stage 1 costs initiating or opposing an application up to completion of the first court day. That is a lump sum of $1820 plus a daily hearing fee which, for a short mention, is $190. Secondly, preparation for final hearing.
Under stage 5 the respondents would be entitled to an amount of $4,090 as preparation for hearing of a one day matter. In addition the respondents would be entitled to final hearing costs for a legal practitioner's attendance at hearing which is a daily hearing fee for a full day hearing of $1,365 which, in this case, would be payable for the two full days on which the hearing took place. In addition the respondents would be entitled to disbursements other than counsel's fees. In some circumstances an advocacy loading would be appropriate where the advocate appears with an instructor, but that is not the case in this matter. I have concluded that that would be the appropriate costs outcome in this matter.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 December 2001