Cvetkovski v Cleary Bros (Bombo) Pty Ltd
[1999] NSWADT 34
•26 May 1999
Set aside by Appeal: Set aside by appeal on 3/5/01
CITATION: Cvetkovski -v- Cleary Bros (Bombo) Pty Ltd [1999] NSWADT 34 DIVISION: Equal Opportunity APPLICANT: Lou Cvetkovski RESPONDENT: Cleary Bros (Bombo) Pty Ltd FILE NUMBER: 238 of 1996 HEARING DATES: 07/27/1998; 07/28/1998; 07/29/1998; 09/30/1998; 07/31/1998; 09/30/1998 SUBMISSIONS CLOSED: 01/29/1999 DATE OF DECISION:
26 May 1999BEFORE:
G Ireland - Judicial Member
L Farmer - Member
A Silva - MemberPRIMARY LEGISLATION: Anti-Discrimination Act 1977 APPLICATION: Imputed Disability Discrimination; Race Discrimination - Associate; Race Discrimination - Employment; Victimisation - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
A Healey of counsel instructed by Craddock Murray & Neumann
C Ronalds of counsel instructed by KPMG LegalORDERS: 1. The complaints of unlawful discrimination on the ground of race and on the ground of the race of an associate have been substantiated.
2. The complaint of unlawful discrimination on the ground of disability has been substantiated.
3. The complaint of victimisation has been substantiated.
4. The Respondent is liable pursuant to Section 53(1) of the Act to the Complainant for the doing of the acts which constituted the unlawful conduct the subject of the findings in 1,2 and 3.
5. The Respondent to pay to the Complainant by way of compensation for the unlawful discrimination and victimisation an amount of $43,651.91, and that such amount be paid within twenty-one (21) days from the date of this decision.
6. The parties have leave to make an application to the Tribunal to determine whether or not costs, and to what extent costs, should be awarded in this enquiry and that such application be made within twenty-one (21) days from the date of this decision, and if no application is received in that time, the Tribunal directs that there be no order as to costs in this enquiry.
2 The complaint is made on 4 separate grounds, namely:
BACKGROUND
1 On 22nd October 1996 the President of the Anti-Discrimination Board referred to this Tribunal for enquiry as a joint complaint, complaints made by Mr Cvetkovski and Mr Marshall against the Respondent. Subsequently Mr Leslie Marshall indicated that he was not proceeding with his complaint. The Tribunal on 27th July 1998 commenced its enquiry into the complaint made by Mr Cvetkovski (“the Complainant”).
(a) Unlawful discrimination on the ground of race of the complainant;
(b) Unlawful discrimination on the ground of race of an associate of the complainant;
(c) Unlawful discrimination on the ground of imputed disability; and
(d) Victimisation.
3 By consent of both parties, a copy of the written report made by the President of the Board to this Tribunal, was admitted as an exhibit in the enquiry. That report shows that the Complainant, by letter lodged with the Board on 15th May 1995, set out allegations supporting the 4 items of alleged breach of the Anti-Discrimination Act NSW 1997 (“the Act”). The Anti-Discrimination Board followed its usual practice of advising the Respondent of the nature of the allegations, by letter dated 1st June 1995. A copy of the response by the Respondent was referred to the Complainant and the Complainant replied to the Board by letter dated 7th June 1995, in which the Complainant commented on the responses from the Respondent. A Conciliation conference between the parties took place on 3rd October 1995. By letter dated 22nd July 1996 the legal representatives of the Complainant requested the President, in accordance with the Act, to refer the matter to this Tribunal for its enquiry.4 As a preliminary issue in the enquiry, the Tribunal ruled that the scope of the issues to be determined by the enquiry were limited to the matters the subject of the complaint lodged with the Board on 15th May 1995 and amplified to the extent of the comments in the reply to the Board by the Complainant in his letter to the Board of 7th August 1995. The Tribunal ruled that the Complainant was not entitled, in this enquiry, to produce evidence of instances which may have occurred after 7th August 1995 which would constitute an item of further complaint. Any such items of additional complaint, if they should exist, would require that the Complainant make those complaints in accordance with the provisions of the Act by lodging additional written complaints with the Board. It was necessary in addition, for the Tribunal to consider the extent to which the Complainant could properly introduce into the enquiry evidence relating to the circumstances of the cessation of employment of the Complainant with the Respondent which occurred on or about 2nd September 1996, being a date approximately 13 months after the expiry of the period of complaint. The Tribunal has ruled that it was open to the Complainant to present evidence to the Tribunal to establish that the cessation of employment of the Complainant was connected to the unlawful acts of discrimination alleged in the Complaint and that the same conduct which the Complainant alleges constituted the unlawful discrimination, was continuous after the 7th August 1995 and up to the time of the cessation of employment.
RELEVANT STATUTORY PROVISIONS
6 The definition of “race” up to 8th August 1994 was in the following terms:
5 The Anti-Discrimination (Amendment) Act 1994 contained provisions which substituted a new definition of “race” and inserted a new provision viz. Section 4A. Both of these provisions commenced on 8th August 1994. As the allegations in the complaint cover periods before and after 8th August 1994 and having regard to the savings and transitional provisions of the Act, in Part 2 of Schedule 1 of the Act, it is necessary in this enquiry to have regard to the application of the definition and, so far as it is relevant Section 4A, for the periods of the complaint both before and after the application of the amending act.
“Section 4(1) …
"race" includes colour, nationality and ethnic or national origin; …”
7 The definition of race after 8th August 1994 is in the following terms:
8 Section 4A, effective after 8th August 1994 is as follows:
"Section 4(1)…
"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin;…"
9 The allegation of unlawful racial discrimination is a claim of direct discrimination which encompasses Section 7(1)(a) and Section 8(2) of the Act and those provisions of the Act are as follows:
"If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.”
“Section 7(1):
A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of race if, on the ground of the aggrieved person’s race or the race 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 a different race or who has such a relative or associate of a different race; or...”
“Section 8(2):
"It is unlawful for an employer to discriminate against an employee on the ground of race:
(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."11 The allegation of unlawful discrimination on the ground of disability is a claim of direct discrimination under Sections 49A, 49B and 49D(2) of the Act. Those provisions are as follows:
10 The allegation of unlawful discrimination on the ground of race of an associate, is also a claim of direct discrimination under Section 7(1)(a) and Section 8(2) of the Act.
12 The allegation of victimisation alleges a breach by the Respondent of the provision of Section 50 of the Act which is in the following terms:
“Section 49A
A reference in this Part to a person's disability is a reference to a disability:
(a) that a person has, or(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a 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 disability)”
“Section 49B:(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which 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.For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. ”
“Section 49D(2):
It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which 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.”
“Section 50(1)
It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.”
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
13 The complaint is made against the Respondent as the employer of the persons who it is alleged committed the discriminatory acts and the claim is made that the Respondent is liable for the acts of is employees under Section 53 of the Act which is in the following terms:
“Section 53:
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.
14 In submissions, Counsel for the Respondent referred to a claim by the complainant that the Respondent was alleged to be responsible for any unlawful conduct of its employees under Section 52 of the Act which attracts liability to a person who causes, instructs, induces, aids, or permits another person to do an act which is unlawful under the Act. The Complainant did not make submissions to the Tribunal relative to Section 52 of the Act but relied exclusively on the vicarious responsibility of the Respondent under Section 53 of the Act, and accordingly the Tribunal has not considered the application of Section 52 to the Respondent in this enquiry.
THE RACE OF THE COMPLAINANT
15 The Complainant was born in Macedonia, a former republic of Yugoslavia and his parents are described as Macedonian Yugoslavian. The Complainant migrated to Australia at the age of 3. He was educated in Australia and speaks English with a slight accent. The Respondent made no submission in relation to the race of the Complainant. The Tribunal finds that the Complainant is of Macedonian Yugoslavian descent and background.16 The evidence before the enquiry shows that in March 1994 and between December 1994 and February 1995 the Complainant visited the Philippines where he had contacts with Filipino nationals and he formed a close association with a Filipino woman. The evidence also shows that he later married a woman of Filipino nationality. The Tribunal finds that for the purposes of this complaint and the application of Section 7(1)(a) of the Act, the Complainant was associated with one or more female persons of Filipino nationality.
STRUCTURE AND ORGANISATION OF THE RESPONDENT
17 It is necessary to determine the personnel and their relationships in the organisation of the Respondent, in order to understand the circumstances in which the events giving rise to the complaint, occurred, and to examine those circumstances in the context of the application of Section 53 of the Act and the vicarious liability of the Respondent for the acts of its employees.18 The Complainant commenced employment with the Respondent at its Albion Park Rail Concrete Plant (“the Plant”) on or about 18th December 1992 as a truck driver. Initially he was employed on a casual basis and he was made a permanent employee on or about 19th June 1993. He ceased employment on 2nd September 1996. During the whole of the period of his employment with the Respondent he was located at the Plant.
19 Mr Ken Hile was the Leading Hand at the Plant and in that position he supervised the activity of the Complainant and the other truck drivers. The truck drivers during the period of the Complainant’s employment comprised Messrs Dennis Ridley, Phillip Bourke and Peter Svechheimer. Each of these drivers gave evidence to the enquiry. There were other truck-drivers from time to time on a casual basis at the Plant.
20 Mr Ray Davidson was the Weighbridge Foreman at the Plant. He was responsible for the supervision of the tipper truck fleet and as such did not have daily contact with the Complainant.
21 The Complainant, Mr Hile and the other truck drivers drove agitator concrete trucks from the Plant to deliver concrete as ordered to customers at the sites at which concrete was to be poured.
22 The organisational chart of the Respondent shows the drivers in the bottom line position, with the batcher above the drivers, the sales representative above the batcher, and the sales representative reporting to the Manager for Illawarra who in turn reported to the Divisional Manager. The persons occupying those respective positions above the drivers at the Plant were:
Mr Bill Lenard - the Concrete Batcher.
Mr Noel Creighton - The Sales Representative. Mr Bryant, the Divisional Manager, in his evidence describes Mr Creighton as the Plant Manager and Sales Representative. The Tribunal concludes that the description by Mr Bryant of Mr Creighton as the Plant Manager is the more accurate description of the responsibility of Mr Creighton. His role at the Plant was not confined to a marketing role but he occupied the Senior Management role at the site.
Mr Michael Balcon - was the Illawarra Area Manager, Concrete Division of the Respondent and was based at its Coniston Plant. Mr Balcon was responsible for the Albion Park Plant and the Coniston Plant. Mr Creighton reported to Mr Balcon.
Mr Ronald Bryant was the Divisional Manager of the Concrete Quarry and Transport Divisions of the Respondent and had ultimate responsibility for the operations of those divisions which included the Plant. Mr Bryant in turn reported to the Chief Executive Officer and to the Board of Directors of the Respondent.
Mr Brian Cleary was an Executive Director of the Respondent. His office was located at Port Kembla and he visited the Plant 3 or 4 times a day.24 The absence of evidence from Mr Brian Cleary who Mr Lenard in his Affidavit describes as visiting the Plant approximately 3 or 4 times a day is also remarkable. He stated:
23 Evidence was given to the Tribunal by each of the above persons with the exception of: Mr Cleary for whom no explanation was given for the absence of evidence: Mr Creighton who had retired from the employment of the Respondent on 7th July 1997: and Mr Lenard who had filed an Affidavit with the Tribunal but was unable to attend the enquiry because of illness. The Tribunal admitted Mr Lenard’s Affidavit as an exhibit but because he was unavailable for cross examination the Tribunal has referred to the material in his Affidavit only for the purpose of expanding on background information and to assist in understanding the conflicts in the evidence between other witnesses. The lack of any material from Mr Creighton, although to some degree explicable by his retirement, gives rise to an inference that being in a position of managerial responsibility for the Plant, his evidence could have supported the contentions of the Complainant that he had complained to Mr Creighton about the conduct he alleges he was subjected to in the earlier periods of his employment. Mr Creighton could also have assisted the Tribunal with evidence concerning the events in February and March 1995.
“Brian Cleary appeared to adopt the Weighbridge Office of the Plant as his second office. The Weighbridge Office is located 100 yards away from my office and therefore gives a full view of the Plant yard. In the period September 1992 to September 1996 it was not unusual for Mr Brian Cleary to see me in my office and question me as to why the Complainant was not working”.
25 In these circumstances it is likely Mr Cleary would have been to be in a position to observe the conduct of the nature about which Complainant complains or Mr Cleary would have been in a position to refute the Complainant’s allegations of that conduct.The absence of evidence from Mr Cleary, being such a senior executive of the Respondent, leaves open an inference that he was not in a position to refute these allegations.26 In the absence of submissions from the Complainant seeking the drawing of inferences by the Tribunal adverse to the Respondent, about the absence of evidence of Mr Creighton and Mr Cleary, the Tribunal has not given special weight to such inferences but it does find that the absence of such evidence is not supportive of the submissions of the Respondent that the evidence of its employees should be preferred to the evidence of the Complainant.
CHRONOLOGY OF RELEVANT EVENTS
27 The Tribunal has isolated from the volume of evidence, situations during the Complainant’s employment with the Respondent which assist in understanding the background to the complaints. The Tribunal accordingly lists the following dates in chronological order:
18th December 1992 - Complainant commences employment on a casual basis as a truck driver at the Plant
19th June 1993 - Complainant placed on permanent employment at the Plant
December 1993 - Mr Les Marshall (a witness to the enquiry) employed as a truck driver at the Plant
March 1994 - The Complainant visits the Philippines
25th December 1994 to 6th February 1995 - The Complainant again visits the Philippines
18th January 1995 - Mr Marshall dismissed from employment with the Respondent
7th February 1995 - Mr Balcon issues to the Complainant a written warning
9th March 1995 - The Complainant files an Incident Report Form with the Respondent
9th March 1995 - Meeting between co-drivers, Mr Balcon and Mr Creighton to prepare written statements
10th March 1995 (afternoon) - Meeting between the Complainant, Mr Bryant and Mr Creighton (in Mr Creighton's office)
17th March 1995 - Meeting between the Complainant, co-drivers, Mr Welsh (union representative), Mr Bryant, Mr Creighton and Mr Balcon
17th March 1995 - Further meeting between the Complainant, the co-drivers and Mr Bryant and Mr Welsh
17th March 1995 - Further meeting between the Complainant, Mr Bryant, Mr Creighton, Mr Lenard, Mr Balcon and Mr Welsh
17th March 1995 - 4th meeting between the Complainant, Mr Bryant and Mr Welsh - threat to issue final warning to the Complainant
18th April 1995 - Final written warning issued by Mr Balcon to the Complainant
10th May 1995 - Contamination of aggregate bins
11th May 1995 - Mr Balcon confronts the Complainant regarding incident of the contamination of the bins
15th May 1995 - Complainant lodges complaint with the Anti-Discrimination Board
19th May 1995 - Mr Balcon issues the Complainant with a final warning notice
1st June 1995 - Anti-Discrimination Board notifies Respondent of allegations by the Complainant
17th August 1995 - The Complainant comments to Anti-Discrimination Board on the Respondent’s response to the complaint
3rd October 1995 - Conciliation conference at Anti-Discrimination Board
19th July 1996 - Solicitor for the Complainant requests Anti-Discrimination Board to refer complaint to this Tribunal
2nd September 1996 - Complainant ceases to attend employment
10th September 1996 to 17th July 1997 - Complainant on sickness benefits from Department of Social Services
17th July 1997 to the date of Hearing - Complainant on Unemployment Benefits from the Department of Social Services
28 It is now necessary to examine the details of the evidence relating to the allegations of racial discrimination.RACIAL DISCRIMINATION
29 The Complainant makes two claims of direct racial discrimination under Section 7(1)(a) of the Act.30 The first complaint arises out of the Complainant’s allegation that from the time he commenced employment with the Respondent on a casual basis on or about 18th December 1992 and continuing after he was made a permanent employee on 19th June 1993, and subsequently until the date on which he ceased to attend at his employment on the 2nd September 1996, the Complainant was subjected to harassment based on his race, in the work place. The harassment comprised his supervisor and his co-drivers, and in some instances, his managers referring to him directly, and in other cases referring to him within his hearing in discourse between his supervisor, his co-drivers and his managers, by the use of grossly insulting racial epithets.
31 The second complaint relates to allegations by the Complainant that from the time of his first visit to the Philippines on vacation in March 1994, his supervisor and his co-drivers subjected him to racial abuse by statements made to him directly that referred to his association with females of the Filipino race.
32 There is considerable divergence between the evidence of the Complainant as to the nature and extent of the verbal racial abuse and the evidence of the supervisor, his co-drivers and the managers in their versions of the nature and extent of verbal abuse which took place at the Plant. It is necessary in these circumstances for the Tribunal to make a careful analysis of the evidence of these witnesses and for the Tribunal to make a determination of the extent to which the evidence of the witnesses can be accepted.
33 The overwhelming conclusion of the Tribunal on consideration of the whole of the evidence, is that the management of the Respondent condoned the method applied by the supervisor responsible for the carrying out by the drivers of agitated trucks of their daily duties, to enforce his authority by concerted verbal abuse of the drivers using whatever epithets he found obtained his desired response from each driver.
34 The Respondent, through its Board of Directors, imposed a strict regime at the Plant for the maintenance of the Plant, and of the agitator trucks, of the highest standard. The supervisor, Mr Hile, was responsible to see that this regime was implemented. He achieved his objective by a constant barrage of directions to the drivers to clean their trucks which were often splattered with concrete and to maintain the cleanliness of the Plant. The atmosphere of abuse initiated through the dogmatic approach adopted by the supervisor created a situation where co-drivers amongst themselves applied abusive epithets to each other. The persons in a position of authority at the Plant, Messrs Batcher, Creighton, Balcon and Brian Cleary, in the view of the Tribunal, must have observed this atmosphere and by failing to take any positive steps to change the attitude of the supervisor and co-drivers to each other, condoned the conduct.
35 Mr Marshall stated that Mr Creighton in a conversation with him referred to the Complainant as “the wog” and as “Louie the wog” . Although it has been submitted that the Tribunal should not accept the evidence of Mr Marshall because of the unsatisfactory nature of his termination of employment with the Respondent, the Tribunal nevertheless accepts this aspect of Mr Marshall’s evidence. The Complainant stated that Mr Lenard, the batcher, on occasions has referred to him in the same manner. The Tribunal accepts this evidence of the Complainant as it takes the view that Mr Lenard, being in a position where he, more than any other of the managers of the Respondent would have directly observed the day to day interaction between the supervisor and the other drivers at the Plant, would have been caught up in that atmosphere. The Tribunal accepts that he was not as involved in the abuse to the same extent as were the supervisor and co-drivers.
36 The evidence establishes that the Complainant was adversely affected by the abuse that was directed at him. His co-drivers, on the other hand, accepted the situation and indicated to the Tribunal that they considered that the atmosphere of abuse at the Plant was not of such an exceptional nature that they saw it necessary to formally complain about it. The fact that the other drivers were prepared to put up with the abuse and to participate in it, is not, in the view of the Tribunal, a basis for the Tribunal to regard the adverse reaction of the Complainant as demonstrating an over-sensitive reaction on his part. This view is re-enforced by the evidence of the Complainant of the objections he made to management about the extent of the abuse directed at him and the times at which he made those objections.
37 The Complainant stated, and the Tribunal accepts, that the Complainant did not complain about the abuse during the period of his casual employment as he did not wish to prejudice his appointment as a permanent driver. The Complainant stated that after his appointment in June 1993 he asked Mr Hile to stop calling him names and to leave him alone and Mr Hile stated, “I can say anything I want so shut your bloody mouth you wog prick or I will tell the bosses to sack you because I’m the leading hand here.” The Complainant then stated that he approached Mr Lenard about the treatment he was receiving from Mr Hile and asked Mr Lenard to stop it. He says he stated that Mr Lenard replied, “There is nothing I can do you just have to accept it, because it happens all the time. Ken Hile has been doing it since he has been working at Cleary Bros.” The Complainant further stated that he then raised the matter with Mr Creighton and received a similar response to that given by Mr Lenard and that shortly after his conversation with Mr Creighton, Mr Hile said to him, “I heard you went and spoke to Bill Lenard and Noel Creighton about me. I told you, you fucking prick they wouldn’t do anything." The Complainant again referred the matter to Mr Lenard and to Mr Creighton and he stated that they each said to him that Ken Hile “hates wogs and we can’t do anything about it. Ken is your leading hand and you must listen to him and not make trouble”38 Again, after the Complainant had returned from his visit to the Philippines in March 1994 he alleges that he was the subject of discrimination by association and this caused him to approach Mr Balcon about the abuse to which he was being subjected. The Complainant does not specify the conversations that took place with Mr Balcon but he stated that the abuse ceased for a period of about 5 months after August 1994 and his conversation with Mr Balcon.
39 Finally, the Complainant lodged a written complaint using the Respondent’s ‘Incident Report’, on 9th March 1995.
40 Mr Marshall stated that he mentioned to Mr Balcon in March 1994 that he was concerned about the abuse to which Mr Hile was subjecting the Complainant. Mr Balcon stated that this conversation took place about 31st October 1994. It is more likely that the conversation took place in October 1994. Mr Balcon stated that after this conversation he spoke to Mr Hile and told him that he must cease using the abusive language to the Complainant and that Mr Hile said that it was not a problem and that all he wanted was for the Complainant to keep his truck clean and to do his job. Mr Balcon further stated that he then reported the matter to his superior, Mr Bryant, the Divisional Manager and that Mr Bryant told him to keep an eye on it. Mr Balcon said he then subsequently, from November 1994 to December 1994, had regular conversations with the Complainant when he asked him if everything was “OK” and that the Complainant assured him that everything was fine. The Complainant denies being approached by Mr Balcon in his way. Except for the Incident Report and the conversation between Mr Marshall and Mr Balcon, Mr Balcon, Mr Hile and Mr Lenard deny that they were ever approached by the Complainant with complaints about the conduct of Mr Hile or the co-drivers. Having regard to the view that the Tribunal takes about the denials by Mr Hile and the co-drivers of their abuse of the Complainant, to which we will refer later, the Tribunal does not accept the denials of complaints being made by the Complainant during the periods referred to by the Complainant up to 9th March 1995.
41 After March 1995 the Complainant acknowledges that he did not make further complaints about the abusive conduct to which he continued to be subjected, because of the threats made to him about termination of his employment and his wish not to take any action with management which might cause management to act on their threats of dismissal. The Tribunal accepts that having regard to the threats made by management to the Complainant about dismissing him, to which reference will be made later, that the Complainant was justified in his concern for the adverse consequence of him making further complaints.
42 In addition to denials by Mr Hile, the co-drivers and management at the Plant, of the nature of the racial abuse about which the Complainant makes his complaint, the Respondent, through the evidence of those persons, sought to demonstrate that the Complainant participated in the abusive atmosphere at the Plant by directing epithets at Mr Hile, and his co-drivers and that some of these epithets contained racial connotations. In addition, the Respondent’s evidence was directed to demonstrate that the abuse directed at the Complainant was brought about by his unsatisfactory attitude to his work performance. In particular, he was sloven in his appearance, often did not wear clean clothes, failed to maintain his truck in the required state of cleanliness and failed to pull his weight around the Plant in the general duties required of him. This evidence was directed to show that the reaction by his supervisor was justified because of his attitude to his work and that the supervisor was supported by the managers in his endeavouring to have the Complainant comply with the work requirements and that the Complainant’s abuse of his supervisor and co-workers, and on occasions to the Managers, was part and parcel of the give and take of the working relationships at the Plant and that the Complainant could not be heard to complain when he, by his conduct, attitude and use of abusive language, attracted abusive responses from the persons with whom he came in contact at the Plant.
43 It is necessary to examine the details of the nature of the abusive language which the Complainant alleges was applied to him. In relation to the complaint of discrimination based on race, the Complainant alleges that there were a variety of abusive terms directed to him. Examples were, "wog", “wog cunt”, “Louie the wog”, “wog bastard”, “fucking wog bastard”, “wog prick”. The Complainant alleges that these epithets were used in various contexts and most of the epithets were used from the time of his commencement of employment in December 1992 until he ceased to attend employment in September 1996. The only periods in which the abuse did not occur was a period of about five (5) months from August 1994 to December 1994 and for a short period after 17th March 1995.
44 In addition, the Complainant alleges that the abuse included disparaging racial references to the food that he ate in the crib room at the Plant, especially when he was having lunch in that room with the other workers. Mr Hile in particular, would make comments about his food as “wog food”, “greasy wog food”, “eating slant food”.
45 The Complainant and Mr Marshall gave evidence that they observed racial comments referring to the Complainant, scratched on the surface of concrete blocks at the Plant. These blocks were made from excess concrete returned from jobs and poured by the drivers into special bins which formed the concrete blocks. Photographs were produced by the Complainant which showed written on a block the words, “Louie sux”. The Complainant stated that there were other blocks which he had seen with similar type comments but for which he had not taken photographs.
46 In relation to the claim of discrimination on the ground of race by association, the Complainant alleges that after his return from visits to the Philippines he was subjected by his co-drivers to epithets such as, “nip”, “slope-head fucker”, “all you wogs would fuck anything” , “slant-eye fucker” , “how would a wog half yellow belly slant-eyed baby look ”.
47 Mr Marshall was not able to confirm the use of all the epithets allegedly used against the Complainant, because he was not present on the occasions when the language was used but Mr Marshall confirmed instances when he did hear the abuse being directed at the Complainant and he confirmed that racial epithets were applied to the Complainant when Mr Hile and some of the co-drivers and Mr Creighton on occasions referred to the Complainant in conversations with Mr Marshall. It was submitted that the Tribunal should not accept the evidence of Mr Marshall as he was dismissed from the employment of the Respondent in January 1995 and he had unsuccessfully sought to obtain an award against the Respondent for wrongful dismissal and that he had reasons to distort his evidence against the Respondent. Taking into account that Mr Marshall might hold a grudge against the Respondent, there was nothing in his demeanour before the Tribunal nor in the manner in which he gave his evidence which would justify the Tribunal in disregarding or discounting the weight of his evidence. To the extent that his evidence was capable of supporting the Complainant’s allegations, the Tribunal accepts that evidence as support for the Complainant’s allegations.
48 In their evidence Mr Balcon, Mr Hile and three of the other drivers with one or two exceptions of instances where it was admitted that abusive words were applied to the Complainant, denied the allegations of racial abuse directed at the Complainant and in the case of the other drivers, their evidence emphasised the reciprocal abuse directed at them by the Complainant. In cross-examination, however, the evidence of a number of these witnesses contained admissions of the use by them of epithets of the nature complained about by the Complainant. It is appropriate that we deal in some detail with these admissions.
MR BALCON
49 In his Affidavit, Mr Balcon refers to abusive language used by Mr Hile to him and sought to demonstrate that the comments were in the context of good hearted and friendly banter. He stated:
“I did not take offence to the comments made by Mr Hile because in the period that I worked with Mr Hile until his retirement in or about August 1995 it became apparent to me that Mr Hile spoke to everyone by using colourful language, including customers and the Directors of Cleary Bros.”
50 In cross examination Mr Balcon amplified that statement by giving examples of the phraseology that he had heard Mr Hile use, “Pommy bastard” and “a big useless pommy bastard” Mr Balcon denied that he had heard Mr Hile use the words, “wog”, “slopehead”, “nip”, to anyone. Mr Balcon also said:
“Ken swears more than most. He would say it to me when talking to me, he would do the same when he had been talking to a Director of the Company, one of our Directors, that is the nature of the man.”
Mr Balcon said that he heard Mr Hile used the words, “a useless bastard”, and that he used the word, “fuck”.51 Mr Balcon acknowledged that as he had warned Mr Hile in October 1994 about using abusive language to the Complainant, the complaint made formally by the Complainant in the Incident Reported dated 9th March 1995 and the allegations made against Mr Hile, were matters of serious concern.
MR HILE
52 Mr Hile stated that he only called the Complainant , “a lazy wog”, on one occasion and Mr Hile agreed that he had made some remarks to the Complainant about, “wog tucker”, and that was because of the type of foods the Complainant was eating. He stated that he called the Complainant, “Louie the wog” sometimes when he had an argument with him. Mr Hile agreed that he had a loud voice which could be heard all over the Plant yard. When asked if he had used words to the Complainant:
“Look at your filthy dirty truck you greasy wog prick just like you dirty greasy. Clean it or I will get you sacked.”
Mr Hile responded:
“I did say some of it but not exactly the way you put it.”
Mr Hile also stated that he heard Mr Bourke, one of the truck drivers say to the Complainant:
“You’ve got the Aids virus, don’t touch us.”
And that he heard about Mr Bourke saying to the Complainant:
“Look what you gave me, you might have given me Aids.”
Mr Hile stated that it was not obvious to him that the Complainant was offended by Mr Hile calling him a wog.
53 When asked, in cross examination, about the Complainant being offended when reference was made to, “wog tucker”, Mr Hile responded:
“On [in] my Affidavit it says that he turned around and told me what it was because previous he’d always - he was living on mangos and - mainly mangos and hamburgers until he got his Filipino girlfriend or whatever and then he proceeded to eat the other wog food, or whatever it was he was eating.”
54 Mr Hile explained that he understood the word, “wog”, referred to people from Italy or Yugoslavia and, “It comes from the war.” Mr Hile agreed that he referred sometimes to the Complainant in the terms, “Tell the wog he has got a load”, and that he sometimes called the Complaint, “a wog”, behind his back and that other drivers would also refer to the Complainant as a wog. Mr Hile stated that Mr Creighton sometimes called the Complainant, “Louie the wog” but he denied that Mr Lenard referred to the Complainant as, “Louie the wog”.55 When asked about his conversations with Mr Marshall concerning the Complainant Mr Hile stated that it was possible that he referred to the Complainant as, “Louie the wog”. And when asked did he accept that it was not the right thing to do, Mr Hile responded:
“Possibly, but we did not know that he was offended by being called names. He went straight and complained to the management. He didn’t turn around and come and tell us to stop calling him names.”
56 Mr Hile stated that it was possible that he continued to call the Complainant, “Louie the wog”, behind his back after the meeting in March 1995 and he further stated that he could not be definite that after that date he did not call the Complainant to his face, “Louie the wog” and “wog bastard”.
MR SVECHHEIMER
57 Mr Svechheimer was a co-driver at the Plant. He admitted that he called the Complainant, “aids man”, on a couple of occasions and that he did this because the Complainant had showed him some photographs of the Complainant with Filipino women. He said that he had called the Complainant, “a wog” on a daily basis, “when he used to call me names”, and that the Complainant had started the name calling. He also stated that he heard Mr Hile call the Complainant, “Louie the wog”, but only on one occasion. He could not remember the date of the occasion but it was soon after Mr Svechheimer started work at the Plant. Mr Svechheimer started at the Plant at about the same time as the Complainant in December 1992. He stated that he had heard Mr Ridley and Mr Bourke refer to the Complainant as, “Louie the wog”, and added that this was after the Complainant, “used to call us names”, and that this would occur on a daily basis. He said that it was:“like a joke all the time and that it did not worry him and that the Complainant did not indicate to him that he did not like being called Louie the wog.”
58 Mr Svechheimmer also admitted that when he called the Complainant, “a wog” he sometimes said that in front of Mr Lenard but denied that he had said it in front of Mr Creighton. He said that he could not remember whether Mr Lenard had ever told him to stop calling the Complainant "a wog".
MR RIDLEY
59 Mr Ridley, a driver at the Plant, stated that he had called the Complainant, “wog” on about five (5) times a month commencing six (6) months after the Complainant started work at the Plant but that he had not continued calling him a wog after 17th March 1995. He stated that he did not hear Mr Hile call the Complainant “a wog” or “Louie the wog” and that he had not heard the other drivers call the Complainant “Louie the wog”. Mr Ridley agreed that he had heard Mr Bourke say to the Complainant, “You’ve got the Aids virus, don’t touch me”, and that he had also seen the concrete block with the words written, “Louie sux”.
MR BOURKE
60 Mr Bourke, a driver at the Plant, denied calling the Complainant, “Louie the wog”, at any time but admitted that he had called him, “a wog fucker” two or three times before 17th March 1995. Mr Bourke denied that he had said to the Complainant, “You’ve got the Aids virus, don’t touch me.”MR DAVIDSON
61 Mr Davidson was the Weighbridge Foreman at the Plant. He was responsible for the tipper truck fleet of the Respondent and did not have direct contact with the agitator truck drivers. He stated that he remembered persons talking about Louie the wog to him but he was not able to remember who had referred to the Complainant as “Louie the wog”.FINDINGS BY THE TRIBUNAL
62 The Tribunal is satisfied from this evidence that the denials by Mr Hile, the drivers and the management at the Plant of the extent of the racial abuse to which the Complainant was subjected, cannot be accepted. The admissions made by the witnesses in cross examination, extended the narrow admissions they made in their Affidavits as to their participation in the name calling and racial taunts to and about the Complainant, and together with the inconsistencies between the witnesses as to what was said by others of them about the Complainant, results in the Tribunal concluding that on the balance of probability, the allegations of the Complainant of the extent to which he was subjected to racial epithets and racial taunts based on his race and the race of his associates during the period from 9th December 1992 to 9th March 1995, are substantiated.63 In the view of the Tribunal the discrimination to which the Complainant was subjected in this period is not overridden or rendered nugatory in the circumstances of this complaint, by the participation of the Complainant in the retaliatory responses he made to the abuse directed at him. Some of the drivers suggested that they had merely responded in kind to the abuse initiated against them by the Complainant. In the generally abusive atmosphere pervading the work place in which the Complainant was required to work, and accepting as the Tribunal does, that the Complainant found the constant abuse directed at him to be stressful and hurtful, and combined with the pressure that was exerted on the Complainant about his work performance, and the lack of response by management to the Complainant’s attempts to have management intervene in the racially discriminatory atmosphere of the work place, it is understandable that the Complainant adopted as a defence an approach of meeting the abusive attacks by retaliation in kind. In this situation it is also understandable, in the view of the Tribunal, that the Complainant’s work performance deteriorated. Management’s reaction was to issue the Complainant with a series of warning notices about his performance.
64 In addition, in relation to the incidents of abuse directed at the Complainant after the 8th August 1994 - the date of commencement of the Anti-Discrimination (Amendment) Act 1994 - Section 4A operated to render unlawful, acts of discrimination which were carried out for more than one reason, if one of the reasons consisted of unlawful discrimination. If, as is claimed by his co-drivers, they were responding to the taunts of them by the Complainant, their response contained racially abusive language which, as the Tribunal finds, constituted unlawful discrimination. Such conduct, in accordance with the section, is to be taken to have been carried out for the purpose of subjecting the Complainant to unlawful discrimination, whether or not the dominant or substantial reason for the conduct was to respond to the taunts of the Complainant.
65 No attempt was made to properly counsel the Complainant about how he should respond to the discriminatory abuse of his supervisor and co-workers, in an endeavour to assist the improvement in his work performance. To do so, management would have to admit that there was justification for the deterioration in the Complainant’s work performance. That was not the way in which management saw fit to respond to the Complainant’s circumstances. On the afternoon of the day on which the Complainant lodged his formal complaint on the Incident Report, the Divisional Manager told the Complainant that he was going to get a warning notice about his performance. That was on the afternoon of 9th March 1995. He was left in suspense for approximately three (3) weeks after that date before the formal written warning notice was given to him by Mr Balcon. That document is expressed to be a final warning and concludes that unless the Complainant’s work performance and attitude improves that he will be dismissed. There is no acknowledgment in these actions of management to the possibility of justification for the complaints of discrimination made by the Complainant.
66 On 10th May 1995 the Complainant caused the wrong aggregate to be placed in an incorrect aggregate bin in the Plant. This was a serious contamination of the aggregate bin which, if undetected, could have caused the wrong concrete mix to be prepared. The Complainant failed to report his action to management before leaving the Plant on 10th May 1995. The contamination was discovered by another worker the following morning when it was reported to Mr Balcon. Mr Balcon confronted the Complainant that morning and cautioned the Complainant about his mistake. The Complainant took the attitude that the contamination of the bin was not a serious offence but Mr Balcon took a different attitude and it is the view of the Tribunal that the contamination of the bin and the failure of the Complainant to immediately advise management of the contamination could have had serious consequences for the Respondent.
67 On 15th May 1995 the Complainant lodged his complaint with the Anti-Discrimination Board. The letter of complaint relates to circumstances up to 12th May 1995, the date after the contamination incident. On 19th May 1995 Mr Balcon handed the Complainant a further Warning Notice, based on the contamination incident, and concluding with the statement:
“Unless you completely change your attitude and the performance of your duties to that as required by this company in line with the award and its addendums under which you are employed then this will be your final written warning.”
68 At this time the Complainant was now under two final written warning notices, one of 18th April 1995 and the other on 19th May 1995. The evidence does not refer to any further disciplinary action against the Complainant by the Respondent after 19th May 1995.69 The Complainant stated that the racial abuse against him continued after that period but in view of the final warning notices that he had been given he was too concerned about retaining his employment, to complain about the discrimination. Generally, the witnesses for the Respondent deny that they continued with their previous conduct towards the Complainant and they state that the Complainant kept away from them and would not eat in the crib room but ate his lunch in his truck. The Complainant describes his situation at that time by reference to the degree of stress that he suffered and which built up over the period until he found that he was unable to face going to work. He stated that his situation became so bad that by 2nd September 1996 he could not face going to the Plant and he ceased attending. He consulted his local Doctor who referred him to a Psychiatrist, Dr Davies, who gave evidence before the Tribunal.
70 Dr Davies first saw the Complainant in November 1996 and saw him at regular intervals until 17th September 1997 when he suggested that his condition had improved sufficiently for him to obtain assistance from the Commonwealth Rehabilitation Service to prepare him for re-employment. Dr Davies stated that he treated the Complainant for a work related depressive illness and in certificates which he issued to the Department of Social Security, he described the Complainant’s illness as a reactive depressive illness. Dr Davies stated that although one can never be 100% sure of the cause of such illness, the Complainant’s experiences during his employment with the Respondent was a major contributing factor. In cross examination when asked about the difference of impacts where there was a mutual reciprocity in name calling, Dr Davies stated that he did not think it matters:
“Because if you have people being called names in a discriminatory manner in the work place then you are going to get somebody who is going to take it personally.”
71 Dr Davies stated further that by 17th September 1997 the Complainant was relatively well and was able to work.72 Having regard to the totality of the evidence before it, and especially taking into account the discrepancies of the evidence of Mr Hile and the co-drivers, the Tribunal determines that on the balance of probability the Complainant suffered discrimination at the Albion Park Plant of the Respondent and that such discrimination was based on the ground of the race of the Complainant and on the ground of the race of an associate of the Complainant and that such discrimination commenced soon after the Complainant commenced employment on 18th December 1992 and continued with various degrees of intensity until the Complainant was forced by the adverse impacts, of such conduct on his health, to cease to attend at the Plant from 2nd September 1996.
73 The Tribunal accepts that during that period of employment the Complainant adequately performed his duties as a truck driver which was his primary responsibility but whilst he was present at the Plant his attention to his other responsibilities deteriorated and his attitude to his work responsibilities at the Plant deteriorated. An example of the deterioration in work attitude was the extraordinary situation arising out of the Complainant taking vacation in the Philippines in December 1994 for which he was granted leave until 16th January 1995. The Complainant did not return from leave until 6th February 1995 and had made no contact with the Respondent during the extended period of absence. When confronted by Mr Balcon and Mr Creighton on 7th February 1996, the Complainant gave the excuse that as the Pope was visiting Manilla at that time he was unable to secure a seat on a plane home any earlier than 6th February. Mr Balcon issued the written warning about that incident to the Complainant on 7th February 1995, although notes made by Mr Balcon state:
“I followed up with the letter because of the requirements imposed by management.”
The impression is left with the Tribunal that management did not see the incident at the time as particularly grave as management granted additional leave with pay to the Complainant for the additional period of absence up until 6th February 1995.74 The deterioration in the Complainant’s work performance and attitude is explicable by reason of the stress under which he was being placed by the atmosphere of racial abuse that permeated the workplace during this period. The Tribunal does not accept that it was the lack of performance and attitude of the Complainant that caused his supervisors, managers and co-drivers to subject him to such intensity of racial abuse. Rather, it was the racial abuse that led to his lack of performance at the Plant.
UNLAWFUL RACIAL DISCRIMINATION
75 The Complainant submitted that the racial discrimination was unlawful as it occurred in the work place and under Section 8(2)(a)(b) & (c) the discrimination was unlawful.76 The Tribunal is not satisfied that the evidence brought by the Complainant to demonstrate under subsection (2)(b) that he was denied access or limited opportunities for promotion, transfer or training to other benefits in his employment, was substantiated. The Complainant stated that he had requested from Mr Balcon that he be given the opportunity to train as a batcher. Mr Balcon stated that he refused this request because he considered the Complainant was unreliable. Having regard to the incident concerning the contamination of the aggregate bins, the Tribunal considers that Mr Balcon was justified in refusing this request. The Complainant also stated that he requested that he be promoted as a tipper truck driver but Mr Davidson refused this request as he considered that the Complainant was not sufficiently qualified. The Tribunal accepts Mr Davidson’s evidence of his opinion as to the Complainant’s lack of qualification and that Mr Davidson held his opinion not because of any view he had formed about the Complainant’s work attitudes.
77 The Tribunal is also of the view that the evidence would not support a finding of unlawful discrimination arising under Sub-section (2)(c) as it is not satisfied that in the circumstances the Respondent has dismissed the Complainant. The evidence supports the contention of the Respondent that it has left open the position of the Complainant for him to return to the Plant and is not satisfied that the evidence is sufficient to support a finding of constructive termination by the Respondent of the employment of the Complainant.
78 Having regard to the Tribunal's finding under Section 8(2)(a), in the following paragraph, the evidence as to any other detriment suffered by the Complainant is not sufficient in the view of the Tribunal to hold that the racial discrimination was unlawful based on any other aspect of detriment.79 In relation to the application of sub-section (2)(a) of Section 8 of the Act, the Tribunal is satisfied that the general nature of the harassment directed at the Complainant by his superiors and his co-workers at the Plant during the period of his employment and being based on his race, materially interfered with the terms and conditions of the employment which he was entitled to expect the Respondent to afford to him and which in normal circumstances of the operation of a workplace of the nature of the Plant, an employee is entitled to expect its employer to provide. The adverse attitude and conduct directed at him was unwelcome and he had made it clear on various occasions that it was unwelcome and except for a period of 4 months from August 1994 no adequate steps were taken by those in a position of control to ensure that those adverse conditions were corrected. The only other attempt by management to restore adequate working conditions arose on 9th March 1995 following the lodging by the Complainant of the formal complaint under the Incident Report. Management called together the co-drivers and they were instructed to write statements about the way in which the Complainant had verbally abused the drivers. On 17th March 1995 a meeting was held which included the local Union representative, who, in the view of the Tribunal had adopted an unsympathetic attitude to the Complainant, but whose intervention led to the co-drivers and the Complainant shaking hands and agreeing that in future they would not abuse each other. The Tribunal accepts the Complainant’s evidence that the abuse ceased for some weeks but that it resumed with equal intensity after that small gap. The Tribunal is not convinced that the actions of management in relation to the formal complaint made by the Complainant and the way it went about preparing for the meeting on 17th March demonstrated a genuine attempt to relieve the Complainant from the cause and basis of his complaint. Management’s intention was to re-establish a workplace without interruption. No genuine attempt was made to sympathetically examine the Complainant’s complaints. The co-drivers were instructed to concentrate on statements which were critical of the Complainant. This was hardly likely to restore an atmosphere at the Plant free from the racial abuse about which the Complainant had complained.
80 The unsatisfactory nature of management’s response to the Complainant’s formal complaint is illustrated by the statement of the Divisional Manager on the afternoon of 17th March to the Complainant when he told him that the Complainant was going to receive a formal warning. It is not conducive, in the view of the Tribunal, to a restoration of proper working conditions at the Plant following the lodging of a formal complaint of discrimination, for the senior manager to threaten the Complainant with disciplinary action. The incongruity is startling and is aggravated by the failure to issue the threatened warning notice until a further four (4) weeks. In the interim, the Complainant having lodged a formal complaint concerning racial discrimination is left in suspense for four (4) weeks as to what disciplinary action he is likely to incur. In the view of the Tribunal these conditions were demonstrative of the lack of willingness on the part of management of the Respondent to treat the Complainant’s complaints seriously and with any intention of changing the adverse working atmosphere of the Plant. The Tribunal finds that the racial discrimination suffered by the Complainant was unlawful as it discriminated against the Complainant on the ground of his race in the terms and in the conditions of employment, which the Respondent afforded to the Complainant.
DISCRIMINATION ON THE GROUND OF IMPUTED DISABILITY
81 This complaint relates to Section 49A and 49B of the Act. It is a claim of direct discrimination alleging that the claimant was treated less favourably on the ground of his imputed disability, than a person who was not imputed to have that disability, would have been treated. Under Section 49(A) of the Act, a reference to a person’s disability is a reference to a disability “that a person is thought to have (whether or not the person in fact has the disability)”. In Section 4(1) of the Act, disability is defined to mean (inter alia):
“the presence in a person’s body of organisms causing or capable of causing disease or illness.”
82 The evidence shows that after the Complainant returned from his visit to the Philippines, Mr Ridley said to him after he came to the Complainant and pointed to a rash on his arm, “You’ve got the Aids virus don’t touch me.” Mr Bourke confirmed that he heard Mr Ridley make that statement to the Complainant. Mr Svechheimmer agreed that he called the Complainant, “Aids man” on more than one occasion and he explained that was because the Complainant had shown him photos of the Complainant with Filipino women.83 The Tribunal is satisfied that the evidence establishes that the Complainant was the subject of taunts by co-drivers after 7th February 1995 when the Complainant returned from his visit to the Philippines. These taunts constituted discrimination of the Complainant based on his imputed disability of carrying or being infected by the Aids virus. Such taunts constituted unfavourable treatment when compared with the treatment that would have been extended in the same circumstances to a person who did not have the imputed disability.
84 For the reasons expressed in relation to the racial discrimination of the Complainant, the Tribunal finds that this discrimination was unlawful, in breach of Section 49D(2)(a) of the Act, as the discrimination adversely affected the terms and conditions of employment which the Respondent afforded the Complainant. The taunts relating to the virus disease were part of the general abusive atmosphere pervading the Plant. The taunts however were specific in that they arose after the Complainant’s visit to the Philippines and were accordingly specifically directed at the Complainant because of his association with Filipino women during that visit. The taunts can accordingly be segmented from the general atmosphere of abuse to the extent that they lifted the level of general abuse to a more hurtful and specific point.
VICTIMISATION
86 Section 50 of the Act renders it unlawful for a person to subject another person to any detriment on the ground that the person victimised has:
85 The Complainant alleges that he was victimised by the Respondent following his complaints to Mr Hile, Mr Lenard, Mr Creighton and Mr Balcon and following his written complaint in March 1995.
(a)
(b)
(c) “Alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act.”
87 The Tribunal has found that despite denials, the Complainant did complain at different times to Messrs Hile, Lenard, Creighton and Balcon.88 The evidence confirms that despite each of those complaints the adverse discrimination against the Complainant continued. This conduct detrimentally affected the terms and conditions of his employment. In particular, the Tribunal takes an especially critical view of the way in which management dealt with the Complainant following the lodgment of the formal complaint on 9th March 1995 and from then through until 18th April 1995 when the Complainant was handed by Mr Balcon the document which was called the final warning notice. In the view of the Tribunal it was detrimental to the circumstances of the Complainant that management should react to the formal complaint on the one hand giving the appearance of attempting to reconcile the deteriorating conditions between the co-drivers, and on the other hand and at the same time threatening the Complainant with disciplinary action and leaving the Complainant in a state of suspense before notifying the Complainant of the details on which the disciplinary action was to be based.
89 In relation to the earlier circumstances in which the Complainant made verbal objections to his superiors, he was subjected to detrimental conduct on each occasion with the exception of the period of 4 to 5 weeks in October 1994 after his complaint to Mr Balcon, either by the lack of response from management or in the case of his objection to Mr Hile, by being told that if he reported to management, management would take no notice and being told subsequently by Mr Hile that management had in fact taken no notice after the Complainant told him that he had complained to his superiors.
90 The Tribunal is of the view that within the terms of Section 50(1)(c) of the Act, the Complainant was subjected to victimisation on the ground that he alleged that he had been discriminated against.
VICARIOUS LIABILITY
91 It has been submitted that the Respondent could not be held liable for any actions of discrimination or victimisation by its employees against the Complainant because in terms of Section 53(1) of the Act the employer did not, either before or after the doing of the act, authorise the employee, either expressly or by implication, to do the act.92 In view of the denials by Messrs Hile, Lenard and Balcon, that they received complaints by the Complainant it is submitted that those denials, if accepted, could not implicate the Respondent with liability for any of the earlier allegations of discrimination. The Tribunal has not accepted these denials and has preferred the evidence of the Complainant that he in fact did make the earlier complaints. The Tribunal accepts that Mr Hile had only limited authority as his role was that of Leading Hand responsible for the supervision of the drivers of the agitator trucks. It is difficult to determine the precise authority of Mr Lenard but on balance the Tribunal would accept that Mr Lenard may not have had sufficient authority over the drivers other than to carry out his role as batcher at the Plant. Despite the submissions to the contrary, the Tribunal does not accept that Mr Creighton did not have managerial responsibility for the Plant. He is described by the Divisional Manager as being the Plant Manager. He has been described in other places as merely a Sales Representative. The Tribunal is satisfied that Mr Creighton had responsibility for the day to day control of the Plant and in that position had authority from the Respondent to prevent the continuation of the abusive atmosphere of the Plant. Not only did Mr Creighton not control this abusive atmosphere but the Tribunal accepts that he contributed to it by participating in descriptions of the Complainant as “Louie the wog” in conversations with Mr Marshall. This demonstrates that Mr Creighton authorised the maintenance of the unsatisfactory abusive atmosphere.
93 Mr Balcon also had responsibility for the control of the Plant. The Tribunal is satisfied that Mr Balcon was aware from his own frequent attendances at the Plant and also from the specific complaints that he received from the Complainant and from Mr Marshall that intense abusive conduct took place generally at the Plant and in particular that the Complainant was subjected to racial abuse which was unwelcome. Mr Balcon in August 1994 directed Mr Hile to cease this conduct and thereafter Mr Balcon made several enquiries of the Complainant but he admits that he did not follow up with Mr Hile or with any of the other drivers. In the view that the Tribunal has taken of the unsatisfactory attempts by management in March and April 1995 to deal with the Complainant’s written complaint and Mr Balcon’s participation in management’s response, the Tribunal is not satisfied that Mr Balcon did not authorise the maintenance of the abusive atmosphere of the Plant and indeed that he contributed to it by failing, except for the period in October 1994, to take firm and positive action on the occasions when he had the opportunity to do so.
94 The most senior manager involved in the disputes was Mr Bryant, the Divisional Manager of the Respondent. He did not become directly involved until at least 7th February 1995 when he authorised the payment of additional holiday pay to the Complainant for the unauthorised extended leave the Complainant took at that time. That act of generosity is inconsistent with the later participation by Mr Bryant in the inadequate response to the Complainant’s formal complaint. It is the view of the Tribunal that Mr Bryant was more concerned with re-establishing working relationships between the drivers of the Plant than he was in giving credence or examining objectively complaint made by the Complainant on 9th March 1995. This is evidenced by the reaction of Mr Bryant on the afternoon of 17th March 1995 following the reconciliation process that took place earlier between the Complainant and the co-drivers, when Mr Bryant told the Complainant that his work performance was unsatisfactory and that he was going to receive a written warning notice. The Tribunal has already commented on its view of these actions. Mr Bryant’s actions are not, in the view of the Tribunal, consistent with him not authorising the discriminatory atmosphere at the Plant and taking adequate steps to ensure that that conduct did not continue. There is no evidence to show that Mr Bryant took any positive steps after 17th March 1995 to see that there was no repetition, as indeed the Tribunal has found there had been, in the abusive conduct towards the Complainant at the Plant.
95 The evidence also shows that Mr Brian Cleary, a Director of the Respondent was present at the Plant on most working days. He was located in an office distant from the main working area but the Tribunal considers that he would have been aware that abuse between Mr Hile and the drivers and amongst the drivers was taking place. There is no evidence that Mr Cleary attempted to intervene to stop this conduct other than the Complainant stated that on one occasion Mr Cleary as he drove past him said to the Complainant that he would have to watch his step. Such conduct is also not consistent with the Respondent not authorising the conduct that is complained about.
96 The Respondent points to evidence that it had an antidiscriminatory racial policy and that policy was disseminated through the work place. The evidence shows that the policy consisted of a written notice being displayed on the Notice Board at the Plant, amongst other notices on the Board. The Policy is headed: “Cleary Bros (Bombo) Pty Ltd Equal Employment Opportunity Policy”. It refers to an affirmative action program and then refers to “Sexual Harassment Policy”. Under that heading, the notice states:
“Another facet of our equal employment opportunity program is to provide an environment for all workers that is free from racial and sexual harassment.”
97 It then describes sexual harassment but makes no further reference to racial harassment. The Respondent also points to the Enterprise Agreements which operated during the relevant period between the Respondent and its employees. The Agreement that operated between 1st February 1994 and 1st February 1996 contained no reference to an equal opportunity policy but it does have provisions dealing with procedures for individual grievances. The Agreement that operated after 1st February 1996 under the heading “EEO” contains the statement:
“Cleary Bros is an equal opportunity employer. All employees are entitled to work in an environment free from discrimination. Cleary Bros will recruit, employ and train personnel on the basis of experience, skills and on the job performance.”
It also contained provisions for individual or group grievances.
98 The evidence does not support a finding that the Respondent had in place during the relevant period an effective policy dealing with racial discrimination, nor did it have an effective procedure for employees to make complaints about racial harassment. This is evident from the procedure adopted in March 1995 when the Complainant sought to lodge a formal complaint. The form that he was asked to complete was an Incident Report form. The form was not relevant to an anti-discrimination complaint but related to reports of accidents at the work place. The Complainant was not aware of any person who was allocated by the Respondent to deal with grievances of an anti-discrimination nature. The Complainant lodged the Incident Report with Mr Lenard who immediately referred it to Mr Balcon and Mr Bryant. Mr Lenard was the most convenient person in authority with whom the Complainant could lodge the Incident Report in the absence of any person nominated by the Respondent to fulfil that role.
99 The Tribunal is satisfied that it has not been established that the employer did not, either expressly or by implication, authorise the employees to do the acts which the Tribunal has found constituted discrimination and victimisation against the Complainant. The Respondent accordingly is liable to the Complainant for the consequences of those acts.
COMPENSATION
100 In view of the findings by the Tribunal, the Tribunal must now consider the appropriate orders to be made under Section 113(1)(b) of the Act.101 In relation to the findings of unlawful discrimination on the ground of race and on the ground of race of an associate, Counsel for the Complainant has indicated that the Complainant is not seeking separate awards of damage. The Complainant is seeking separate awards of damage in relation to the findings of unlawful discrimination on the ground of race; unlawful discrimination on the ground of disability; and victimisation. Damages are sought under two heads, namely, an award of general damages for the hurt, stress and mental depression suffered by the Complainant as a consequence of the unlawful conduct directed at him; and secondly, damages for the recovery of his economic loss relating to his period of unemployment from 2nd September 1996 to the date of the Hearing on 28th July 1998.
102 The Tribunal is of the view that separate awards of general damage can be awarded in respect of each of the findings of unlawful discrimination. That is, separate awards can be made for the three (3) complaints of unlawful discrimination and victimisation. In regard to damages for economic loss, it is not appropriate that the Complainant receive any more compensation that the actual separate amount of economic loss, by awarding amounts of economic loss under for each of those three (3) complaints.
GENERAL DAMAGE
103 The Complainant had described the stress, hurt, strain and emotional anguish that he experienced from the time of his employment on 18th December 1992 through to 2nd September 1996 when he ceased to return to work. There was one break of four (4) months from August 1994 when the intensity of the abuse, abated. The Complainant stated that the effect on him increased such that from May 1995 until he finally decided that he could not go back to work, he became so stressed that it was an effort each day for him to leave home and go to work and to face the further abuse and the stress to which he was being subjected at the workplace. The medical evidence of Dr Davies supports the Complainant’s evidence that by the time the Complainant saw Dr Davies in November 1996 and through until September 1997 the Complainant was suffering from a depressive illness, the major contributing factor being the stress to which he was subjected at the work place.104 The assessment of the damage that should be awarded to the Complainant, in the view of the Tribunal, must be offset to some extent by the conduct of the Complainant in participating in the type of abusive conduct about which he complained. In the view of the Tribunal, although the Complainant retaliated in this way by way of defence to the abuse to which he was subjected, such conduct of the Complainant contributed to the degree of abuse directed at him. The Tribunal has taken this into account in its assessment of the compensatory award.
105 The Tribunal has also taken into account that the statutory limit of $40,000.00 in Section 113(1)(b) of the Act, should be awarded in the most extreme case and that it is in the discretion of the Tribunal in each complaint to assess an appropriate amount having regard to the extent of the unlawful conduct and its consequence on the Complainant.
106 Taking account of each of these aspects, the Tribunal in this enquiry makes the following awards:
1. In relation to the unlawful discrimination on the ground of race and race by association, the Tribunal directs that the Respondent pay to the Complainant by way of compensation an amount of Five thousand dollars ($5,000.00).
2. In relation to the unlawful discrimination on the ground of disability, the Tribunal directs that the Respondent pay the Complainant an amount of Three thousand dollars ($3,000.00).
3. In relation to the claim of victimisation, the Tribunal directs that the Respondent pay the Complainant an amount of Three thousand dollars ($3,000.00)
ECONOMIC LOSS
107 The Complainant seeks an award of compensation for economic loss in a total amount of Forty four thousand dollars ($44,238.00) made up of the net income which the Complainant would have earned had he been able to continue in the Respondent’s employment from 2nd September 1996 to 27th July 1998 being a total of 99 weeks at a net rate, ie, net after tax, of $453.31 per week. An allowance has been made of an amount of $639.00 being an amount earned by the Complainant for a short period of employment with another employer.
108 The medical evidence shows that the Complainant was not fit to work until 17th November 1997. The Tribunal would award the Complainant the amount of loss of net income sought, for the period from 2nd September 1996 to 17th November 1997. Dr Davies stated that he considered the Complainant, after 17th November 1997 should receive Work Rehabilitation Assistance but there is no evidence to indicate whether the Complainant sought such assistance. The Complainant stated that he has not worked up to the date of the commencement of this enquiry except for the short period of approximately 2 weeks when the Complainant earned $639.00.
109 The Tribunal does not accept that it was open to the Complainant to return to work with the Respondent. Although the parties had not formally or constructively terminated the employment of the Complainant, in the circumstances of the history of that employment the Respondent cannot avoid the consequences of its unlawful conduct by claiming that after 17th November 1997 the Complainant could have returned to his former position in its employ.
110 There is no evidence to show what attempts the Complainant made to mitigate his economic loss by seeking other employment in the period after 27th November 1997 or to attend for rehabilitation as recommended by Dr Davies in order to assist him to return to work.
111 In making an award for economic loss, an allowance should therefore be made for the further mitigation of the loss by the Complainant and for the vicissitudes which might have occurred during that period or, as has been otherwise described, as the evaluation of chance matters. Taking those factors into account, the Tribunal would assess the economic loss on the following basis:For the period from 2nd September 1996 to 17th November 1997 - 61 weeks x $453.51 per week - 27,651.91
For the period 18 th November 1997 to 27th July 1998 - 5,000.00
$32,651.91For the latter period, a heavy discount has been applied for the lack of attempts at mitigation and for the vicissitudes that may have attended in any event the Complainant’s employment in that period. No such allowances have been made for the period up to 17th November 1997 as the Complainant’s loss was caused by his mental illness, caused by the Respondent's discriminatory conduct towards him, which prevented him from working during that period.
TOTAL AMOUNT OF AWARD OF COMPENSATION
112 The total amount of compensation awarded by the Tribunal can be summarised as follows:(1) General Damages for:
Unlawful racial discrimination 5,000.00
Unlawful disability discrimination 3,000.00
Victimisation 3,000.00(2) Economic loss 32,651.91
TOTAL: $43,651.91
113 As there were three (3) separate items of complaint for which the Tribunal was entitled to award a maximum of $40,000.00 on each complaint, making a total maximum award that was available of $120,000.00 and as the award of economic loss flows not from any one of the items of complaint but relates to each of the complaints, it is the view of the Tribunal that it is not appropriate to divide the economic award into three (3) parts and to allocate each part to each complaint but that the more appropriate method, for the purposes of assessing the award of damages, is to award the separate amounts for general damages to each complaint and to regard the balance of the maximum limit available to the awarded for each complaint as available to be applied against the total economic loss award. The result is that the Complainant is entitled to be awarded separate amounts determined by way of general damages for the separate items of complaint and in addition to be awarded the total amount of $32,651.91 by way of economic loss on the basis that the total amount awarded, $43,651.91 is less than the combined maximum for the three (3) complaints, which is $120,000.00.
SUMMARY
114 The Tribunal summarises the findings and makes the following directions:
1. The complaints of unlawful discrimination on the ground of race and on the ground of the race of an associate have been substantiated.
2. The complaint of unlawful discrimination on the ground of disability has been substantiated.
3. The complaint of victimisation has been substantiated.
4. The Respondent is liable pursuant to Section 53(1) of the Act to the Complainant for the doing of the acts which constituted the unlawful conduct the subject of the findings in 1,2 and 3.
5. The Respondent to pay to the Complainant by way of compensation for the unlawful discrimination and victimisation an amount of $43,651.91, and that such amount be paid within twenty-one (21) days from the date of this decision.
6. The parties have leave to make an application to the Tribunal to determine whether or not costs, and to what extent costs, should be awarded in this enquiry and that such application be made within twenty-one (21) days from the date of this decision, and if no application is received in that time, the Tribunal directs that there be no order as to costs in this enquiry.
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