Fernandez v State of New South Wales

[1999] NSWADT 32

CITATION:	Fernandez v State of New South Wales [1999] NSWADT 32
DIVISION:	Equal Opportunity
APPLICANT:	Alejandro Fernandez
RESPONDENT:	State of New South Wales
FILE NUMBER:	139 of 1996
HEARING DATES:	05/28/1997; 05/29/1997; 05/30/1997; 06/05/1997; 06/20/1997; 07/18/1997; 11/11/1997; 12/01/1997; 01/21/1998
SUBMISSIONS CLOSED:	03/28/1998
DATE OF DECISION:	14 May 1999
BEFORE:	G Innes AM - Judicial Member S Clayton - Member A Silva - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Race Discrimination - Employment -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person (until 20/6/97) P Gworzdecky of Counsel (after 20/6/99) Respondent: M Sexton of Counsel instructed by NSW Police Service
ORDERS:	1. The Respondent to pay $2000 to the Complainant on or before 11 June 1999

(1) Introduction
1 Alejandro Fernandez (the Complainant) lodged a complaint with the NSW Anti- Discrimination Board on 25 May 1994 alleging discrimination on the ground of his race by his employer, the NSW Police Service in breach of the Anti-Discrimination Act (1977) (NSW) (the Act). On 23 November 1994 he lodged a further complaint that he had been victimised in breach of the Act.

2 The Anti- Discrimination Board investigated the complaints and attempted conciliation. This was unsuccessful, and the President of the Anti- Discrimination Board referred the complaints to the Equal Opportunity Tribunal pursuant to section 94(1) (b) of the Act.

3 A Hearing took place before the Tribunal on:

28- 30 May 1997, 5 June 1997, 20 June 1997, 18 July 1997,
11 November 1997, 1 December 1997, and 21 January 1998.


4 During a large part of the hearing, the Complainant was not legally represented. However, from 18 July 1997, he obtained representation. The representative, Mr. Gwozdecky of Counsel, made a submission to re-open the complainant's case. In a preliminary decision the Tribunal did not allow the re-calling of witnesses, or the calling of further witnesses, but admitted into evidence some of the documents tendered by the complainant.

5 Final submissions from the parties were made in writing. These were received by 28 March 1998.

(2) Statutory provisions
6 The following sections of the Act are relevant in this matter.

Race discrimination
Section 7
7. What constitutes discrimination on the ground of race
(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

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

Section 8:
8. Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of 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.
(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.

Section 4A
4A. Act done because of unlawful discrimination and for other reasons
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 53
53. Liability of principals and employers


(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.

Section 50
50. Victimisation

(1) It i s 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:

(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, 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.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.


(3) Evidence
3.1 Introduction
7 The complainant provided the Tribunal with a very large amount of evidence in his points of claim, a statement of evidence, and in oral evidence. The vast majority of that evidence was uncorroborated. It detailed a series of incidents from the commencement of the complainant's employment as a Senior Network Computer Operator Grade 1 in the computer operations area of the respondent on 3 September 1990 until the complainant commenced unpaid leave from the respondent from December 1996.

8 During this period, the complainant changed employment to the position of a trainee programmer in the Applications Development area on 3 April 1995. The thrust of the complainant's allegations was that these incidents, individually and in there totality, constituted race discrimination and victimisation in breach of the Act.

9 It is clear from the complainant's evidence, supported by evidence from witnesses he called and witnesses called by the respondent, that computer operations was a poorly managed and seriously undisciplined work environment. Conversations and behaviour of employees in this work environment were inappropriate, in terms both of poor work practices and conduct towards other employees. This assessment was accepted by both parties throughout the hearing. It was confirmed in the evidence of Mr. Fernandez himself, and also in evidence of messrs Ross Christie and Paul Bonnet called by the complainant. Confirmation was also given in evidence of messrs Rhonda Dominick, Jennifer Hanson, and Gary Ryan, called by the respondent. However, it is not the task of this Tribunal to "audit" workplaces- rather it is our function to determine whether breaches of the Act have occurred.

10 It is not the intention of the Tribunal to summarise evidence of everything which is alleged to have taken place. This is because most incidents, taken in the context of the workplace described, could not constitute race discrimination and victimisation, even if the complainant's evidence is taken at its highest.

11 Further, most of the allegations made by the Complainant are uncorroborated. The Tribunal does not suggest that uncorroborated evidence cannot, as a general rule, persuade it that a breach of the Act has occurred. However, in a situation such as this where it has formed the view that workplace tensions were paramount, and that employee behaviour was often inappropriate, it could not be satisfied that breaches of the Act had occurred without some corroboration.

12 It is clear from the evidence of the Complainant, his witnesses, and witnesses called by the respondent, that the complainant was not a popular person in the workplace. This was due, according to witnesses (including some called by the complainant), to the allegations which he made about the "inappropriate" and sometimes "criminal" behaviour of co-workers, his somewhat outspoken opinions on matters inside and outside the workplace, and his opposition to the directions of supervisors with which he did not agree. This is confirmed in the evidence of Peter Dominick, a fellow employee called by the complainant; Anthony Costa, a fellow-employee called by the complainant; Barry Hannerley, a supervisor called by the respondent; and Arnold Vilkins, a fellow-employee called by the respondent.

13 For all of these reasons the Tribunal has focused its attention on a number of incidents which it regards as having the potential to constitute discrimination on the grounds of race, and victimisation.

3.2 Abuse by Ross Lucre in June 1991
14 The Complainant alleged that on 21 June 1991 at 22.35 hours there was an incident involving Mr. Lucre, a shift supervisor with whom the complainant worked. Mr. Lucre was drunk and he shouted in the computer room to the Complainant and Mr. Jolly (a man born in Argentina) who were speaking in Spanish: "Speak English mate, you are in Australia not in the bloody country where you came from". The Complainant further stated that the conversation was private, and was not interfering with work.

15 Mr. Jolly gave evidence that on that day he was having a chat to Mr. Fernandez in Spanish and Mr. Lucre said speak English or something to that effect in a slightly raised voice.

16 Mr. Lucre gave evidence that he remembered on that day asking Mr. Fernandez to speak in English but did not remember shouting at him.

3.3. Other Comments By Mr. Lucre
17 The Complainant also alleged that Mr. Lucre would frequently address him as: "bloody or fucking mongrel, arsehole, wog, son of a bitch", every time that the Complainant made minor errors. The complainant asserted that, while Mr. Lucre did abuse other members of staff, he did not do so using similar racist epithets.

18 In support of this allegation evidence was given by Mr. Christie. He said that he worked as a Computer Systems Officer in Computer Network Operations. and Although this area was located across the hall from the Computer Operations area, because of the shortage of space there, Mr Christie was physically located in front of Mr. Lucre's desk in the Computer Operations area.

19 Mr. Christie referred to two specific instances that he could remember in which Mr. Lucre spoke to Mr. Fernandez in this way. The first was when Mr. Fernandez arrived for work later than the time necessary for the employee on the previous shift to hand over to him. Mr. Fernandez was for some reason unaware that he had this responsibility and he was taken to task by Mr. Lucre for the fact that the other employee had to wait for Mr. Fernandez. Mr. Christie said Mr. Lucre said to Mr. Fernandez words to the effect "Why are you fucking well here this bloody late, you know you should be here to take up on your shift early." He further stated that Mr. Fernandez tried to explain about some transport delay but Mr. Lucre said a series of expressions to the effect that Mr. Fernandez did not know what he was doing and that his performance efficiency was not up to the mark. Mr. Christie further said that Mr. Lucre made these remarks very boisterously, and everybody in the work area heard it.

20 Mr. Christie said that the second occasion involved the alleged incorrect loading of a cartridge by Mr Fernandez. He said Mr. Lucre told Mr. Fernandez "You fucking wog why can't you bloody learn to read English". He said that when Mr. Fernandez retorted "well I did what I thought was right" Mr. Lucre said that "you don't know what you're doing here, you don't know your job, I don't know why the hell they hired you."

21 Mr. Lucre denied the allegations. He stated that "he was a bit loud" in the workplace, and that "he enjoyed a bit of an argument" but that he had not used the racist terms alleged by the complainant.

3.4. Mistreatment by Mr Garside
22 The Complainant stated that on 8 January 1992 he asked Mr. Garside (one of his supervisors) if Mr. Garside could sign an Application for Payment in Advance for his annual leave. He said that Mr. Garside said "no". Mr. Fernandez said that he would ask Mr. Callaghan (a more senior supervisor) and he started walking towards Mr. Callaghan's office. Mr. Garside came from behind, grabbed his arm, twisted it violently and said "give me that fucking paper arsehole I'll sign it". mr fernandez said that he complained to Mr. Callaghan, and Mr. Garside apologised.

23 Mr. Garside did not deny the incident, but claimed that he had grabbed the form, but not touched Mr Fernandez. He said that he apologised to Mr. Fernandez twice about the matter, once before Mr. Fernandez went to Mr. Callaghan and again in front of Mr. Callaghan. .

3.5 Rostering
24 The complainant alleged that on 6 April 1992 Mr. Garside rostered him with Mr. Lucre continuously for a period of twelve months, and that Mr. Lucre abused, humiliated and harassed him during that time. He said that as a shift worker he was supposed to be rostered with all the staff and not just with Mr. Lucre.

25 Mr. Garside agreed in his evidence that Mr. Fernandez was rostered for a year with Mr. Lucre. He said that most people tend to work in teams, depending on the number of staff that are there, and that during the same period most of the staff tended to work together over an extended period of time.

26 Roster sheets presented in evidence were inconclusive.

3.6 Abuse By Mrs Hanson
27 The Complainant stated that Mrs. Hanson, a Shift Supervisor, often called him "dick-head, prick-head, stupid, arsehole, idiot, he is not only blind but deaf too, but it is OK due to the fact he is too old", if the Complainant made minor errors.

28 Ms Hanson stated in her evidence that she never used any of those terms and she would not use those terms to anybody in the workplace.

3.7 Harassment By Mrs Hanson
29 The Complainant also alleged that Ms. Hanson harassed him because of his accent and that she said he did not know how to express himself in English when he used the phone to help another departmental employee. Mrs Hanson again denied these allegations.

3.8 Allegations of Victimisation In Transfer of Employment
30 The Complainant further alleged that he was transferred to the Applications Development Section in April 1995 as a result of his complaint of race discrimination to the Anti-Discrimination Board. This resulted in loss of earnings to him.

31 On 1 March 1994 Mr. Fernandez approached the Office of Internal Affairs and made a number of allegations against four fellow staff members. These allegations involved both managerial and criminal matters.

32 On 25 May 1994 Mr. Fernandez made a complaint to the Commissioner of Police which alleged racial discrimination in the workplace.

33 On the same day he lodged his complaint with the Anti-Discrimination Board. On 7 April 1995 (almost a year later) the Anti-Discrimination Board wrote to the respondent advising that Mr. Fernandez had lodged a complaint and setting out his allegations.

34 Mr Fernandez alleged that on 3 April 1995 he was moved to the Applications Development Section.

35 He stated that in principle he didn't agree to the transfer because, as he explained to the Director of Information Technology Mr. Harris, there was no need for him to be moved as he had done nothing wrong. Further, he said that he received a big salary because of his shift work, and he would not get it in another place. He said that he eventually agreed to the move on the understanding that he would get the same income in the seconded position. This did not occur.

36 Mr. Harris, Director of Information technology Branch, gave evidence that in about March 1995 the Complainant asked for an opportunity of a training secondment because he had an interest in computer programs and was undertaking a training course in that area. Mr. Harris said that he arranged for the Complainant to be seconded to a training position in the Applications Development Section. This was done, in part, to solve some of the problems in the complainant's work area. It was an opportunity to address these problems created by the complainant's interest.

37 Ms. Diorio (former Director of Human Resources) stated that the complainant was made aware of the loss of income that would result from the secondment, but that he was looking at it as a career progression that would give him the experience to earn higher income later.

38 Ms. Diorio further stated that in spite of the fact that Mr. Fernandez was seconded to do programming work without any programming experience, he was placed on a base salary equal to what he had received before. This salary is usually paid to a programmer with two years experience.

3.9. Victimisation Through Sexual Harassment Allegations
39 The Complainant further alleged that Ms. Jennifer Hanson and Ms. Rhonda Dominick victimised him by lodging complaints of sexual harassment against him. He asserted that both women knew of his complaint to the ADB when they made these allegations.

40 The Complainant asserted that, as a result of the sexual harassment allegations, he was moved on to a different shift causing him to lose shift penalties.

41 Ms Hanson gave evidence that she made a written complaint of sexual harassment on 1 July 1994, and her memo to that effect was produced.

42 Ms. Dominick made these allegations on 15 November 1994.

43 Ms. Hanson stated in her memo that during the previous year she had been rostered to work with Mr. Fernandez on occasions where `hey were the only two people working in the section. These usually occurred on weekends or night shifts. On those occasions Mr Fernandez made comments about sexual matters that she found offensive. She said that:

"One situation in September 1993 was on a Sunday afternoon shift. The television was playing in the background, with a segment about Clydesdale horses. Alex started to tell me about a trip he made into the city some time ago when he saw three horses harnessed to the Penfolds wagon. At this time, he stated how all the women 'secretaries' (of course none were managerial!) standing on the kerb waiting to cross the road were laughing and pointing at the horse's genitals because they would really enjoy a sexual relationship with a penis that large".


44 She also referred to other incidents. one was where he referred to women buying large dogs if they had a large sexual appetite. others involved his sexual problems with his wife, inflatable dolls and masturbation.

45 Ms. Dominick stated that the incident she referred to happened on 7 November 1994 and that she was rostered to work the night shift (10.30 PM to 6.30 AM with the Complainant in the Computer Room. She said that:

"We were just having a general conversation and I believe at that time Mr. Fernandez was saying - he was talking about his daughter or his little or young son and he was saying that they tease each other as sister and brother. I said "oh she's only a teenager herself" and that's when he turned the conversation around. He started explaining to me how he believed when actually young ladies become women, like he was saying, she's not a kid, she's a grown up lady. He was referring to things as menstruation cycles and that in his opinion, as soon as young boys could get an erection that's when they become men and I saw no reason for the conversation to go in that direction. I was quite stunned at the way ..."


46 The Respondent confirmed through the evidence of Mr Harris that the Complainant's shift was changed not to coincide with Ms. Hanson's and Ms. Dominick's shifts after these allegations were made. This was done at the direction of the EEO unit.

4 Findings

4.1 Introduction
47 The Tribunal has set out its findings in paragraph numbers relating to the evidence set out in the above section.

48 4.2 In order to establish that a complainant was discriminated against on the ground of his/her race the complainant has to fulfill the requirements of ss 7 and 8 of the Act. the complainant must satisfy the tribunal that on the balance of probability the alleged incidents in fact occurred. He must also show that they constituted less favourable treatment directed toward the complainant in comparison to the treatment that was afforded or would have been afforded to a person in the same or similar circumstances.

49 In relation to the complaint set out in 3.2 above the Tribunal finds that the Complainant was discriminated against on the ground of his race. It accepts the Complainant's evidence corroborated by that of Mr. Jolly. It rejects Mr. Lucre's version of events, based on his lack of complete frankness in the delivery of his evidence. It is not difficult to accept, given Mr. Lucre's "robust" behaviour in the workplace (as confirmed by himself and other witnesses called by the respondent) that he spoke in these terms. This is confirmed by the complainant and Mr. Jolly.

50 The Tribunal regards it as totally acceptable for 2 employees in the workplace to have a private conversation in a language other than English. If the conversation had occurred as part of a broader group discussion, or in the proximity of a third employee who felt that s/he were being discussed, then Mr. Lucre's request may have had some justification. This was not the case. Even if it had been, Mr. Lucre's raised voice and reference to the place of birth of the participants was offensive.

51 For Section 7 of the Act to be made out the perpetrator (in this case Mr. Lucre) must have treated the aggrieved person (the Complainant) on the ground of the aggrieved person's race less favourably than a person of a different race in similar circumstance.

52 The Tribunal finds that Mr. Lucre tried to prevent the Complainant from speaking in his first language which is Spanish and thus treated the Complainant less favourably than a person whose first language is English. Thus the behaviour of Mr. Lucre satisfies Section 7(1)(a) of the Act.

53 This situation would fall under Section 8(2)(a) in that it is unlawful for an employer to discriminate against an employee on the ground of race in the terms and conditions of employment which the employer affords the employee. Mr. Lucre imposed a condition in the workplace that the Complainant not speak in Spanish which was the Complainant's first language.

54 This situation would also fall under Section 8(2)(b) in that it is subjecting the employee to other detriment.

55 Therefore the Tribunal finds that the Complaint of race discrimination based on this incident is substantiated.

56 4.3 in 3.3 above The Complainant made further allegations against Mr. Lucre. The Tribunal concludes that these terms, in these incidents, were used in a racially insulting manner. Again, the Tribunal prefers the complainant's evidence, corroborated by that of Mr. Christie, to that of Mr. Lucre for the reasons set out above.

57 The Tribunal finds that the requirements of Section 7(1)(a) are made out. The Tribunal notes that the fact that Mr. Lucre abused other people does not mean that he did not treat the complainant less favourably as his abuse of the complainant was racially based. he abused the Complainant by making reference to his not being an Anglo-Saxon Australian by use of the term "wog".

58 In order to unlawfully discriminate on the ground of race that ground or racial characteristic in question (ie. accent or language difficulties) must have a causal effect on the decision to commit the discriminatory act. As Street CJ said in Director-General of education & Anor v Breen & Ors (1984) EOC 92-015 "the characteristic will provide the ground that must have a proximate bearing upon the act charged with discrimination. Moreover, the act must have a causally operative effect upon the decision to commit or the committing of the act of discrimination."

59 Less favourable treatment on the ground of race includes racial characteristics such as accent as in Lyffyt v Capital Television (Pty) Ltd (1994) EOC 92-557 or language difficulties as in Campos v Tempo Cleaning Services (1994) EOC 92-648.

60 Mr. Lucre verbally abused the Complainant with reference to his language difficulties and the characteristic of language difficulties is found to have a proximity to the act of discrimination that occurred.

61 Several witnesses gave evidence about the abusive behaviour of Mr. Lucre and that he is very loud in the way he talks to people. Words such as "obnoxious" (Ms. Hanson), "boisterous" (Mr. Christie) indicate that Mr. Lucre is a person capable of abusing people, and that his denial is to be rejected.

62 As noted earlier, The evidence overall suggested that it was a very negative work environment, and that verbal abuse was quite common, but the Tribunal distinguished instances of racial abuse from the general abuse which took place.

63 The respondents submitted that even if language with racial overtones were used by individual employees it could not be attributed to the respondent employer. The respondent further argued that use of such language by individual employees could not constitute a "term or condition" afforded by the employer within the meaning of section 8(2)(a) or subjecting of an employee "to any other detriment" within the meaning of section 8(2)(b).

64 Section 53 of the Act provides that an act done by an employee is taken to have been done by the employer unless 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. The Tribunal finds that the employer, that is the respondent, was vicariously liable for the acts of Mr. Lucre. Mr. Lucre was in a supervisory position, and thus perceived by the complainant to be the representative of the employer. Further, Mr. Lucre, as with most other employees in the section, did not receive any EEO training, a fact confirmed by most witnesses called by the respondent. Finally, although supervisors and managers were aware of the inappropriate conduct occurring in this workplace they took little or no preventative action.

65 Further, the Tribunal finds that this treatment of the complainant constitutes a detriment- it clearly caused him hurt and humiliation, and impacted on his enjoyment of the work environment. Because the comments were made by a person in authority, and were included in directions given to the complainant relating to the performance of his work, they constituted his employment conditions.

66 4.4 In regard to the incidents described in 3.4-3.7 above the Tribunal is not prepared to accept the evidence of Mr Fernandez without coroboration for the reasons given earlier in this decision. Further, even if the evidence were accepted, the Tribunal is not satisfied that they constitute race discrimination in terms of the Act.

67 The issue before the Tribunal is not whether the complainant was treated well or not but whether he was treated badly based on his race. It was noted in Shaikh v Commissioner of NSW Fire Brigades (1996) EOC 92-808 that the conduct of persons in the workplace could be robust and insensitive but not discrimination (at 78,977).

68 The issues described in these paragraphs certainly constitute robust treatment, although there is variance as to exactly how they occurred. But unless the complainant could show an express element of race discrimination, in the context of the workplace and the complainant's behaviour as described, they could not, in the Tribunal's view, constitute a breach of ss 7 and 8.

69 4.8 We turn now to the allegations of victimisation in section 3.8. We do not find these allegations made out.

70 There is conflicting evidence as to the purpose of the transfer of the Complainant. The complainant's evidence is equivocal, and the evidence of both witnesses for the respondent demonstrated a thorough canvassing of all consequences before the complainant's consent was obtained.

71 On 7 April 1995 the Anti-Discrimination Board wrote to the respondent. On 3 April 1995 the complainant was moved to the Applications Development Section.

72 Allowing for the fact that there was some discussion before Mr. Fernandez was transferred, it is safe to conclude that the initiative to transfer Mr. Fernandez was taken well before 7 April which was the day the Anti-Discrimination Board wrote to the respondent. Thus the Tribunal concludes that the transfer was not made as a result of the Complaint to the Anti-Discrimination Board. To argue that the move occurred as a result of the complaints to the Office of Internal Affairs and the Police Commissioner is not sustainable, as these complaints involved much broader issues.

73 Finally, the Tribunal notes that there were numerous attempts to resolve the differences that existed in the area in which the Complainant worked. He was moved to a new area in which he was interested, and he had consented to it. Though it might be stated that others and not the Complainant should have been moved the fact that the Complainant had problems with most of the staff gave some justification to the actions of the respondent.

74 4.9 The finding with respect to the sexual harassment complaints is the same. Messrs Hanson and Dominick deny that they were seeking to victimise the complainant by lodging these complaints. In fact they, and the respondent, were not aware at the time that he had lodged a complaint with the ADB.

75 Further, the evidence of Messrs Hanson and Dominick was persuasive in that it demonstrated a consistent behaviour of the complainant, and in their frank demeanour during its delivery. It is not up to the Tribunal to determine whether a sexual harassment complaint can be made out. The Tribunal is satisfied that these actions did not constitute victimisation in breach of s 50.

(5) Damages
76 Since the Tribunal has found that the complainant was discriminated against on the ground of his race in respect to the actions of Mr Lucre, the Tribunal must consider the orders to make under section 113(1)(b) of the Act.

77 In Hall & Ors v A & A Sheiban Pty Ltd & Ors (1989) EOC 92-250 Lockhart J held that the correct approach to the assessment of damages was to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. This includes injury to the Complainant's feelings or humiliation suffered. This approach has been followed in many later cases: see Willis v State Rail Authority of NSW (No. 2) (1992) EOC 92-455.

78 The complainant has failed to establish that he suffered any financial losses in regard to the incidents which the Tribunal found to be in breach of the Act. Therefore, the Tribunal cannot award any specific damages.

79 In regard to general damages, the Tribunal must consider the impact of the three separate remarks made by Mr. Lucre and described in sections 3.2 & 3.3 of this decision. They must be considered in isolation, as the Tribunal has only found that they occurred on the occasions where corroborative evidence was available. They must also be considered in the context of a workplace where verbal abuse was prevalent, and the extra hurt and humiliation caused because of their racially discriminatory nature is all that can be taken into account. This approach is implicit from the decision of Hall V Sheeban (supra).

80 However, it should also be noted that Mr. Lucre was the complainant's supervisor. As such he was perceived as representing the employer, and he should be setting a positive example for his subordinates to follow. Instead of supporting his subordinate, he indulged in verbal abuse, which on three occasions included racist epithets.

81 In all of these circumstances the Tribunal has formed the view that an amount of $2000 is an appropriate award.

(6) Orders
82 The Tribunal orders the respondent in this matter, the State of NSW, to pay $2000 to the complainant Alejandro Fernandez on or before 11 June 1999.

Dated this fourteenth day of May 1999

____________________ ____________________ ____________________
G Innes AM S Clayton A Silva
Judicial Member