CHEW and DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING
[2006] WASAT 248
•14 AUGUST 2006
CHEW and DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING [2006] WASAT 248
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 248 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:12/2006 | 9 AND 10 AUGUST 2006 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) MS J TOOHEY (SENIOR MEMBER) PROF C MULVEY (SESSIONAL MEMBER) | 14/08/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | The respondent unlawfully discriminated against the applicant on the ground of race and was ordered to apologise to the applicant The Tribunal dismissed the claim of indirect discrimination | ||
| B | |||
| PDF Version |
| Parties: | JULIANNA CHEW DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING |
Catchwords: | Unlawful discrimination on ground of race Accent Characteristic of race Vicarious liability Provision of services Comparator Damages Evidence of loss Causative link |
Legislation: | Equal Opportunity Act 1984 (WA), s 4(1), s 36, s 36(1), s 36(1)(b), s 36(2), s 46, s 46(b), s 46(c), s 90(2), s 161, s 161(2) State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2) |
Case References: | Dare v Hurley [2005] FMCA 844 IW v City of Perth & Ors (1997) 191 CLR 1 Lyffyt v Capital Television (Pty) Ltd (1994) EOC 92-557 Mooney v Commissioner of Police, New South Wales Police Service (No 2) (2003) EOC 93-281 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : CHEW and DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING [2006] WASAT 248 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)
- MS J TOOHEY (SENIOR MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
- Applicant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING
Respondent
Catchwords:
Unlawful discrimination on ground of race Accent Characteristic of race Vicarious liability Provision of services Comparator Damages Evidence of loss Causative link
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Legislation:
Equal Opportunity Act 1984 (WA), s 4(1), s 36, s 36(1), s 36(1)(b), s 36(2), s 46, s 46(b), s 46(c), s 90(2), s 161, s 161(2)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
The respondent unlawfully discriminated against the applicant on the ground of race and was ordered to apologise to the applicant
The Tribunal dismissed the claim of indirect discrimination
Category: B
Representation:
Counsel:
Applicant : Mr JD MacLaurin
Respondent : Ms DE Quinlan
Solicitors:
Applicant : McKenzie Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Dare v Hurley [2005] FMCA 844
IW v City of Perth & Ors (1997) 191 CLR 1
Lyffyt v Capital Television (Pty) Ltd (1994) EOC 92-557
Mooney v Commissioner of Police, New South Wales Police Service (No 2) (2003) EOC 93-281
Case(s) also cited:
Nil
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Edited transcript of reasons given ex tempore
Summary
1 Ms Chew, the applicant in these proceedings, alleged that the respondent, through its employee Ms Castledine, unlawfully discriminated against her on the ground of race in the provision of services, contrary to s 36(1) and (2) and s 46(b) and (c) of the Equal Opportunity Act 1984 (WA).
2 Ms Chew (referred to in documents as Mrs Kong) was a mature age student with Edith Cowan University undertaking a Graduate Diploma in the Early Childhood Program. She was placed at Wattle Grove Primary School for her practical teaching experience, which consisted of one day per week for nine weeks and a four week full-time bloc. Ms Castledine was her supervisor and mentor teacher for the practical experience.
3 Ms Chew made a number of complaints about the way Ms Castledine spoke and referred to her which Ms Chew alleged was unlawfully discriminatory and she alleged that her practical teaching experience was terminated early on the ground of race.
4 Ms Castledine denied that these incidents complained of occurred.
5 Ms Chew also alleged indirect discrimination in that she claimed that the effect of the above conduct that she was required to speak in an Australian accent.
6 The Tribunal found Ms Chew to be a more credible witness than Ms Castledine. Nonetheless, the Tribunal found that the alleged acts of discrimination except one, either did not happen in the way Ms Chew alleged or if they did happen they did not constitute, either singly or cumulatively, unlawful discrimination under the Equal Opportunity Act 1984. The Tribunal also found that the termination of Ms Chew's practical teaching experience was not on the grounds of race.
7 The Tribunal found as a question of fact that Ms Castledine said to the class that "Mrs Kong speaks funny" and that that comment was derogatory and that Ms Castledine would not have made the comment about a person who spoke in an upper class English accent or an Australian accent. The comment therefore constituted unlawful discrimination on the ground of race. In making that finding the Tribunal found that accent is a characteristic of race.
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8 The Tribunal found that there was no indirect discrimination.
9 The respondent accepted it was vicarously liable for Ms Castledine's acts and it made no attempt under s 161(2) to show that it had taken reasonable steps to prevent Ms Castledine making the comment she did.
10 Although Ms Chew sought damages the Tribunal did not award damages as there was no evidence linking the damages claimed to the alleged discriminatory conduct.
11 The Tribunal ordered that the respondent apologise to Ms Chew for the discriminatory conduct and for failing to provide an environment where the conduct could not have occurred. The Tribunal also ordered that the respondent provide a copy of its letter of apology and these written reasons to Edith Cowan University with a request that the university place the letter and reasons on Ms Chew's academic file. The Tribunal made no order as to costs.
Background
12 The applicant, Ms Juliana Chew (who is referred to in documents as Mrs Kong), complains that the respondent discriminated against her on the ground of race in the provision of services contrary to s 36 sub-sections (1) and (2), and s 46 sub-section (b) and (c) of the Equal Opportunity Act 1984 (the Act).
13 Ms Chew was born in Malaysia. Her father is Chinese Malaysian and her mother Iban. She migrated to Australia from Malaysia in 2000. In 1992 she graduated with a Science Honours degree in Food Technology from the University of Reading in the UK. She had held various positions as a food technologist in the UK, Malaysia and Australia.
14 In February 2004 Ms Chew resigned from her job to start a Graduate Diploma in the Early Childhood Program at Edith Cowan University. The Diploma involved coursework and practical teaching experience at a primary school. The practical comprised nine full days distributed over nine weeks followed by a four-week teaching bloc which involved increasing hours of teaching over the course of the four weeks.
15 Ms Chew was assigned to a pre-primary and Year 1 class of 21 children aged between four and six years at Wattle Grove Primary School. Her supervisor and mentor teacher was Ms Maxine Castledine
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- (also referred to in documents as Mrs Mayston). There was also an assistant teacher in the classroom.
16 For reasons which do not matter here, Ms Chew missed three of the nine "distributive days". She started the bloc practical on Friday 28 May 2004, a day earlier than scheduled so that she could "make up" one of her missed "distributive days". It is events that occurred between Friday 28 May 2004 and 2 June 2004 that give rise to these proceedings.
17 Ms Chew complains that the respondent, through the conduct of its employee, Ms Castledine, discriminated unlawfully against her, directly and indirectly, on the ground of race in the provision of educational services. Those services are said to comprise performing the role of mentor teacher, providing supervision, and evaluating and reporting to the university on Ms Chew's performance.
18 On 3 September 2004, following the events which gave rise to her complaint, Ms Chew lodged a complaint with the Commissioner for Equal Opportunity, having requested an investigation by Edith Cowan University and having exhausted the required review processes there. On 25 November 2005 the Commissioner dismissed the complaint as lacking in substance. On 23 January 2006 the Commissioner referred the complaint and her report to this Tribunal at Ms Chew's request, pursuant to s 90(2) of the Act.
Evidence before the Tribunal
19 We have heard oral evidence from Ms Chew and Ms Castledine and have witness statements from both. We also have the report of the Commissioner for Equal Opportunity, the Tribunal's file, a bundle of agreed documents and Ms Chew's supplementary bundle of documents. Three people who might have shed some light on what happened during and immediately after termination of Ms Chew's professional training, namely the assistant teacher, Ms Harders and Ms Warren, were not called although we heard evidence regarding things they purportedly said or did.
The conduct complained of
20 The conduct which Ms Chew claims constituted unlawful discrimination comprised several incidents. We will deal with each in turn.
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Friday 28 May
21 Ms Chew's evidence is that, on Friday 28 May, while discussing the lesson plan for the following week, Ms Castledine corrected her pronunciation. Ms Chew could not recall exactly what Ms Castledine said but she recalled her correcting her pronunciation of the words "science" and "text" by repeating the words in the manner Ms Castledine thought correct. This conversation is alleged to have happened in private, not in the classroom.
22 At the outset of her evidence, Ms Castledine denied any recollection of Ms Chew at all. She told the Tribunal that it was over two years since Ms Chew was at the school and she did not recall even what she looked like or sounded like. Ms Castledine said she did not recall any conversation on 28 May or correcting Ms Chew's pronunciation.
23 When pressed about this, Ms Castledine told the Tribunal that she did not think it was Ms Chew's accent that she "would have" corrected but the words she used; she "would have" corrected Ms Chew's language so that the children would understand properly what she was saying to them; she was helping Ms Chew although she stressed that the children and their learning experience were at all times her paramount consideration.
Monday 31 May
24 Ms Chew says that, on Monday 31 May, she was writing on the blackboard in the classroom when some of the children said words to the effect of "That's not how you do it", pointing to her handwriting. That style was how Ms Chew had learned to write in Malaysia and was different from the Victorian cursive script used at the school.
25 Ms Chew claims that, in response to the children's comments, Ms Castledine said words to the children to the effect that "Mrs Kong doesn't know how to write".
26 Ms Chew gave evidence that she knew about Victorian cursive script but not that it was compulsory at the school. She says she explained to the children that she wrote like that because she was Malaysian.
27 Ms Castledine gave evidence that she recalled this incident. She agreed that she used words along the lines claimed by Ms Chew but she maintained that they had a context. She maintained that she was not demeaning Ms Chew; she was "sticking up for her" by explaining to the children that Ms Chew had learned to write like that because she had grown up in Malaysia. In Ms Castledine's view, it was necessary, for the
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- sake of the children's education, to explain why Ms Chew was writing as she did.
28 Ms Chew could not recall whether Ms Castledine gave any explanation to the children for her statement that she did not know how to write.
Tuesday 1 June
29 On Tuesday 1 June, during a library session, while Ms Chew was reading from a book on dinosaurs chosen by Ms Castledine, she says that Ms Castledine "sniggered" at her pronunciation when she paused before reading out the name of particular dinosaurs.
30 Ms Chew says she was aware of Ms Castledine's conduct because she was sitting near her. She conceded in oral evidence, however, that it was possible that Ms Castledine was laughing at the children. She also conceded that she had wondered at the time if she was being overly sensitive because of Ms Castledine's general conduct towards her.
31 Ms Castledine denies this incident occurred.
32 On the same day, Ms Castledine was reading to the children from a book about a Scottish postman and using a Scottish accent for one of the characters. Ms Chew claims that, when the children laughed at her accent and said she was speaking "funny", Ms Castledine said words to the effect "like how Mrs Kong speaks funny".
33 Ms Castledine denies any recollection of this comment and is emphatic that she does not "work like that". She says, however, that she often puts on different accents and styles of speech and said that children commonly make comments like "you're talking funny".
34 Ms Chew claims that, at the end of the same day, Ms Castledine asked her whether she was aware that the children were making fun of her. Ms Castledine denies she said this.
Wednesday 2 June
35 On Wednesday 2 June, during a spelling class, a child asked Ms Chew how to spell the word "paw". Ms Chew claims that Ms Castledine "rushed over" from the other side of the room and took over Ms Chew's part of the lesson.
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36 Ms Castledine could not recall this incident but does not deny that it could have occurred. She concedes that she tends to "jump in" in the classroom but maintains that she was doing no more than her job as classroom teacher.
37 On the afternoon of 2 June MsChew went to see Ms Judy Warren, Practical Coordinator for the Early Childhood Program at Edith Cowan University. She says she did this because she was upset because of Ms Castledine's conduct towards her.
38 On 3 June Ms Castledine sent a fax to Ms Warren in which she requested emphatically that Ms Chew not return to the school because her continued presence was a "detriment to the children's education". In the event, Ms Chew did not return to Wattle Grove Primary School. There followed a series of correspondence and meetings with university staff about Ms Chew's student status. Although she had been advised she could withdraw from the Program, she in fact received a "Fail" for her practical. The university subsequently amended this to a "Withdrawal" and offered Ms Chew the opportunity to repeat the practical. Ms Chew did not take up this offer.
Ms Chew's performance during the practical
39 According to Ms Castledine, Ms Chew's performance as a student teacher was poor; in particular, she showed no enthusiasm and no aptitude for teaching young children. Ms Castledine was especially critical of Ms Chew's reticence during the very early "distributive" days of the practical. In her view, student teachers are "jumping out of their skins" and "bouncing off the walls" with excitement at the opportunity for real classroom experience. Ms Chew, however, was quiet and reserved and seemed to lack enthusiasm for the work. On the other hand, Ms Chew says she understood that, in the very early days, it was her place to be an observer only.
40 Ms Castledine was also critical of Ms Chew's performance in other ways, and we were given several examples, for instance, how Ms Chew prepared her lesson plans and how long she took to prepare name tags for the children.
41 By Ms Chew's own evidence, she was finding the placement difficult. She said to Ms Castledine on more than one occasion that teaching young children was hard work, and it is evident that she questioned her suitability for the position. At least once she questioned
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- whether she would not be better suited to high school teaching, although she says she was seeking advice from Ms Castledine regarding this.
42 The evidence about Ms Chew's performance during her placement is in some respects conflicting and difficult to reconcile. She received some positive comments in writing from Ms Castledine and another teacher, Ms Harders. As would be expected of a new student teacher (and as would be expected of a mentor doing her job) Ms Chew received a number of "constructive comments" from Ms Castledine and Ms Harders.
43 Ms Castledine gave evidence, variously, that Ms Chew was "struggling a bit" or "having difficulties" or "struggling a lot". According to her fax to Ms Warren on 3 June, Ms Chew's performance was so poor that her continued presence at the school was "detriment to the children's continuing education". According to the Overall Assessment Form completed by Ms Castledine on 18 June 2004, Ms Chew met only two requirements: punctuality and dress. She failed to meet most of the other requirements.
44 The terms of the fax to Ms Warren are difficult to reconcile with Ms Castledine's evidence that Ms Chew was "struggling a bit" and it is very difficult to understand how exactly it came about. Ms Castledine maintains that Ms Warren contacted her and she wrote it at Ms Warren's request or direction, and she did not think at the time of the effect it might have on Ms Chew. According to Ms Chew's witness statement, Ms Warren told her it was Ms Castledine who contacted Ms Warren and asked that Ms Chew not return to the school.
45 We have not had the benefit of hearing from Ms Warren but, in the end, the document is written in Ms Castledine's hand and bears her signature. We make no finding as to how the fax came about but it indicates a disregard for Ms Chew on Ms Castledine's part that is hard to understand. To her credit, at the hearing Ms Castledine apologised to Ms Chew for the fax.
46 We were left with the strong impression that Ms Chew simply did not meet up to Ms Castledine's very exacting standards and that she was treated with a degree of impatience and disregard by Ms Castledine. The question remains whether any of Ms Castledine's conduct amounted to unlawful discrimination.
(Page 10)
Whose evidence do we prefer?
47 Ms Chew's oral evidence was consistent with her correspondence at the time with Edith Cowan University, her complaint to the Commissioner for Equal Opportunity and documents she has put before the Tribunal. We have no reason to doubt her account of what happened.
48 Ms Castledine, on the other hand, was not an impressive witness. From a starting position of no recollection at all of Ms Chew (a difficult proposition for us to accept in light of her evidence regarding Ms Chew's performance and that she failed her, something she had not done before or since), Ms Castledine then recalled a number of matters, some in considerable detail. In relation to some events, the best she could do was to insist that she "would have" or "would not have" done certain things. We find her to be a less credible witness than Ms Chew, and we place less weight on her account of events overall.
49 The clear impression we had was that Ms Castledine has very strong views about how a student teacher should act and what qualities they should possess. She appears to have little time or patience for someone who does not demonstrate the enthusiasm she considers appropriate. That is not to take away from her evident passion and commitment to teaching very young children but it suggests a degree of intolerance for anyone who does not meet her standards, and Ms Chew did not meet them.
Did the incidents complained of occur?
50 We are satisfied, and find, on the evidence before us, that:
(i) a conversation took place on Friday 28 May during which Ms Castledine corrected, or pointed out in some way, Ms Chew's pronunciation at least twice
(ii) on 31 May an incident happened in which comments were made by the children and by Ms Castledine about Ms Chew's handwriting. Because Ms Chew herself explained her handwriting to the children, we accept that Ms Castledine also said some words of explanation similar to what Ms Chew had said;
(iii) on 1 June Ms Castledine was laughing while Ms Chew was reading. We are prepared to accept, because Ms Chew conceded this possibility herself, that Ms Castledine was not laughing at her and that there was no connection to how she was pronouncing what she was reading;
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- (iv) also on 1 June Ms Castledine said words to the effect "like how Mrs Kong speaks funny". We are not satisfied that this was done in the way Ms Castledine claims it "would have" happened or that she tried to explain or put her comment in context. Ms Chew insists Ms Castledine did not elaborate. In the absence of any recollection on Ms Castledine's part, we are not satisfied that she "would have" said more, and find this happened as Ms Chew claims;
(v) on 2 June the "How do you spell 'paw'" incident happened as Ms Chew claims; also that Ms Castledine made comments to the effect "do you know the children are laughing at you". Ms Castledine does not recall these incidents but does not deny them
51 The question is whether any or all of these incidents constituted unlawful discrimination and, if they do, what remedies are available to Ms Chew.
What remedies does Ms Chew seek?
52 Ms Chew claims that, as a result of Ms Castledine's conduct, she suffered hurt, humiliation, loss and damage. In particular, Ms Chew said she felt belittled, that Ms Castledine's behaviour made her "feel small, insecure and very conscious of the way I speak and do things". She was "devastated", extremely upset and became depressed. She says she also suffered from extreme stress from the incidents and that this resulted in her admission to Royal Perth Hospital Emergency department.
53 Ms Chew claims damages for the "hurt and humiliation in the classroom and as a consequence of the termination of the professional practice" and psychological injury arising from the conduct and the termination. She also claims for economic loss in that she gave up her paid employment as a food technologist to undertake the course at Edith Cowan University and for that she claims eight months wages.
54 Ms Chew asks for a written apology from Ms Castledine, damages for loss of income of $30 250, general damages and costs, although at the hearing her counsel conceded that an award of costs is probably not appropriate in this Tribunal and he therefore did not pursue that part of Ms Chew's claim.
55 In support of her claim, we have a letter from Ms Chew's former employer advising of a salary increase and setting out her salary as at
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- 1 July 2003 and a letter from Royal Perth Hospital emergency department confirming her admission on 15 June 2004 for stomach pain the cause of which was not found. Apart from these documents no evidence has been put before us to link the damages claimed to the alleged discriminatory conduct or to quantify the claim for damages.
Relevant legislation and law
Race discrimination
56 Section 36(1) of the Act sets out the meaning of direct discrimination on the ground of race. It is a descriptive section. The relevant parts provide that:
"(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of race if, on the ground of –
(a) the race of the aggrieved person;
(b) a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator –
(d) treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e) segregates the aggrieved person from persons of a different race.
57 Section 36(2) sets out the meaning of indirect discrimination on the ground of race:
"(2) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of race if the
- discriminator requires the aggrieved person to comply with a requirement or condition ¾
- (a) with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."
The meaning of "race"
58 "Race" is defined in the Act to include colour, descent, ethnic or national origin or nationality: s 4(1). The definition does not refer to accent but accent may mark a person as being of a certain race (see Lyffyt v Capital Television (Pty) Ltd (1994) EOC 92-557) and we are satisfied that accent is a characteristic that pertains to race within the meaning of s 36(1)(b) of the Act.
Provision of services
59 Section 46 concerns discrimination in the provision of goods, services and facilities. The relevant parts provide that:
"It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to
discriminate against another person on the ground of the other person's race —
(a) …
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person."
60 "Services" is defined in s 4(1) of the Act. Subject to the proviso that a court or tribunal should not give the term an unreasonable or unnatural
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- construction, if the term is capable of applying to an activity, a court or tribunal should hold that that activity is a service for the purposes of the Act: IW v City of Perth & Ors (1997) 191 CLR 1 at [12]. We are satisfied that, in providing supervision, mentoring, evaluation and reporting on Ms Chew's performance during the practical, the respondent was providing services within the meaning of the Act.
Vicarious liability
61 Section 161 of the Act makes an employer liable for the unlawful conduct of an employee unless it is established that the employer took all reasonable steps to prevent the employee from doing acts of the kind referred to in that paragraph. It is accepted by the parties that the respondent is liable for Ms Castledine's conduct.
"Treated less favourably than"
62 The identification of what is commonly called a "comparator" is an essential element of the statutory formula of direct discrimination. There will not always be an actual person in comparison with whom a complainant is less favourably treated. The wording of the Act makes clear that the discriminator must treat the aggrieved person less favourably than they treat or would treat a person not of that race.
63 It may be that the comparator is necessarily hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service(No 2) (2003) EOC 93-281. It is not necessary that they be in identical circumstances but there must be a sufficient degree of similarity in the circumstances of the complainant and the actual or hypothetical comparator to form the basis of an appropriate comparison.
Reasons for decision
64 For the reasons set out below, we are satisfied and find that the incident on 1 June in which Ms Castledine referred to how Ms Chew spoke amounted to unlawful discrimination on the ground of race contrary to s 36(1) of the Act.
65 We are not satisfied that any of the other incidents complained of amounted to, either singly or cumulatively, acts of unlawful discrimination. We are also not satisfied on the evidence before us that the termination of Ms Chew's professional practice was for reasons of race. Rather the evidence indicates it was because of Ms Castledine's low opinion of Ms Chew's performance that she sent the fax which ultimately
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- either terminated the professional practice or contributed substantially to its termination.
Friday 28 May
66 We are not satisfied, on balance, that Ms Castledine's conduct on this occasion constituted unlawful discrimination. As we have already noted, Ms Castledine is clearly enthusiastic and opinionated about how children should be taught. The only evidence we have is that the comments were made. Ms Chew does not suggest they were said rudely or even unkindly, although she does say she felt demeaned by them. She concedes that at the time she might have been overly sensitive. It is not unreasonable for a teacher to point out pronunciation where very small children are involved.
Monday 31 May
67 Ms Chew gave the children an explanation herself for her different handwriting. To be fair to Ms Castledine, she was most probably simply doing her job as mentor and classroom teacher. We give her the benefit of doubt and accept that her comments were made in the context she claims. It is likely that her somewhat overbearing manner did not help but, on balance, we are not satisfied that her comments constituted unlawful discrimination.
Tuesday 1 June
68 Ms Chew concedes the possibility that, rather than "sniggering" at her, Ms Castledine was laughing at the children. On balance, we are not satisfied that Ms Castledine's conduct amounted to unlawful discrimination.
69 We are not satisfied that any question Ms Castledine asked as to whether Ms Chew knew the children were laughing at her amounted to unlawful discrimination. All we have is Ms Chew's statement that the question was asked. Again, she has not suggested it was said rudely or unkindly and this question could quite legitimately be put by a mentor concerned for a student teacher. For the same reasons, we do not accept that the "how do you spell paw" incident was unlawful discrimination.
"Like how Ms Chew talks funny"
70 We find that the incident on 11 June when Ms Castledine referred to Ms Chew as speaking "funny" amounted to unlawful direct discrimination on the ground of Ms Chew's race. We cannot see how that comment, in
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- the circumstances in which we have found it happened here can be understood as anything other than demeaning and derogatory.
71 Describing someone's accent as "funny" serves to accentuate their difference. Ms Castledine gave the Tribunal an example very early in her oral evidence, of how she reads stories to children and puts on different accents. There is no doubt they would find her engaging and entertaining and, according to Ms Castledine, they find her "funny". Whether that means "amusing" or "odd", to refer to another person's voice in a way that caricatures it and makes it an object of fun the same as a story book character, may serve to belittle them. We accept that is how Ms Chew felt as a result of the comment and that she felt demeaned and belittled by it.
72 The comparator is hypothetical. It is another person of a race different from Ms Chew's but about whom Ms Castledine would not have made that comment. We do not believe that Ms Castledine would have made the same comment about a person with a very upper class English accent, for example, or a southern United States drawl or even a very broad Australian accent. We do not believe that Ms Castledine would have subjected any of those persons to the belittling to which she subjected Ms Chew.
Vicarious liability
73 No evidence has been put before us of any steps taken or measures taken by the respondent to prevent the acts of its employee (see s 161 (2)). We find the respondent vicariously liable for the conduct of it employee.
Indirect discrimination
74 We do not accept, on the evidence before us, that there was any act of indirect discrimination on the part of the respondent.
75 Mr MacLaurin, counsel for Ms Chew, put to us that, in "requiring" Ms Chew to speak with a certain accent, the respondent subjected her to indirect discrimination. We do not accept that argument. As it has been put to us it is circular: the evidence of the indirect discrimination is said to be found in Ms Castledine's allegations of direct discrimination.
76 There is no evidence before us to support a finding that the respondent "required" Ms Chew to speak in a particular accent. The direct and indirect provisions are separate and distinct. One cannot be used to found the other as the applicant asks us to do here.
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Compensation
77 While Ms Castledine's conduct on the one occasion that we find constituted unlawful discrimination was clearly hurtful to Ms Chew, we do not think this can be said to be a case of serious discrimination. Any compensation must be considered in light of this and also in light of the apology Ms Castledine made to Ms Chew at the hearing for the wording of the fax she sent Ms Warren.
78 Leaving her paid employment to undertake her studies at Edith Cowan University does not give rise to a claim by Ms Chew for damages. She was leaving work and taking on a course of her choosing that she may or may not have passed. Her decision to leave work was part of the decision to study that anyone considering embarking on that course would need to make. We do not think the respondent can be liable for any loss of income prior to the conduct complained of.
79 We have been given no evidence as to steps Ms Chew took to mitigate any loss after she left Wattle Grove Primary School and we have no evidence about any loss of earnings from June – August or whatever date it was that she resumed paid employment. We cannot accept the letter of past earnings as evidence of loss at a date well after that time.
80 We do not make an order as to damages. However, we do order that, no later than 31 August 2006, the respondent provide a written apology to Ms Chew for Ms Castledine's discriminatory conduct. Ms Chew asked for an apology from Ms Castledine. Ms Chew did not make Ms Castledine a party to these proceedings and therefore we cannot order Ms Castledine to apologise to Ms Chew for her conduct on 1 June 2004. If she had been a party we would have done so.
81 The respondent must also send a copy of these reasons and the letter of apology to Edith Cowan University with a request that the university place the letter and reasons on Ms Chew's academic file held by the university.
82 With respect to Edith Cowan University and its role in this matter we note that proceedings by the applicant were settled against it and withdrawn. We do not know the details of that settlement but we recommend that the fax sent by Ms Castledine be removed from Ms Chew's academic records held by the university. We are heartened to hear that the circumstances that occurred here, with the summary termination of Ms Chew's professional practice and the lack of mentoring support given to Ms Chew by the university could apparently not happen
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- again. Clearly these actions seemed to have been taken hurriedly and most unfairly. It is a matter of shame that it occurred at all.
83 Accordingly we find that the comments made by Ms Castledine on 1 June 2004 constitute discrimination on the ground of race as defined by s 36, and contrary to s 46 sub-sections (b) and (c), of the Actand that pursuant to s 161 of the Act, the respondent is vicariously liable for Ms Castledine's conduct.
Costs
84 The applicant raised the issue of an order for costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA). Section 87(1) of that Act provides that parties bear their own costs "unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section … ". The relevant enabling Act is the Equal Opportunity Act 1984 and it contains no provision as to costs. Section 87(2) provides that the Tribunal may make an order for the payment by a party of all or any of the costs of another party.
85 We take the view that in proceedings under the Act, the Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
86 In this case we make no order as to costs, as there are no extenuating circumstances that could give rise to such an order against either party.
Orders
87 We make the following orders:
1. That by 31 August 2006:
(a) the respondent must provide a written apology to Ms Chew for the discriminatory comments made by Ms Castledine on 1 June 2004 and for failing to provide an environment in which the unlawful conduct could not occur; and
- (b) the respondent must provide a copy of the letter of apology and the written reasons for the Tribunal's decision in this matter to Edith Cowan University with a request that the university place the letter and the reasons on Ms Chew's academic file;
- 2. the applicant's claim that the respondent is liable for unlawful indirect discrimination is dismissed.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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