FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAMA v QANTAS AIRWAYS LIMITED (No.2) | [2006] FMCA 1767 |
| HUMAN RIGHTS – Race Discrimination − where applicant claimed discrimination in the course of his employment − where applicant alleged the use of racist comments by co-workers and superiors − where applicant claimed discrimination in relation to reporting requirements and general treatment in respect of sick leave and work attendance − where applicant claimed respondent failed to offer him the same conditions of work and opportunities for training and promotion offered to other employees − whether inference can be drawn that the racially discriminatory conduct occurred − where applicant alleged management employees were aware of and participated in discriminatory conduct − whether respondent vicariously liable for breaches of the Race Discrimination Act 1975 pursuant to s.18A. HUMAN RIGHTS − Disability Discrimination − where applicant alleged he was treated less favourably because of his disability following workplace injuries and the sequelae of those injuries and their treatment − where applicant claimed the respondent denied him access to or limited his access to opportunities for promotions, transfer or training on the grounds of his disability − where the applicant alleged the discriminatory conduct engaged in was within the actual or apparent authority of the respondent’s employees − whether the respondent failed to take reasonable precautions or exercise due diligence to avoid the conduct − whether respondent vicariously liable under s.123 Disability Discrimination Act 1992 for the discriminatory conduct. DAMAGES − Assessment − where applicant’s claims of race and disability discrimination partially made out − whether medical assessment supports an argument the found discriminatory events contributed to the applicant’s depressive illness − assessment of damages for psychiatric injury − assessment of damages for past and future medical expenses − whether an apology should be the subject of an order of the court. |
| Disability Discrimination Act 1992, ss.5, 6, 11, 15, 123 Racial Discrimination Act 1975, ss.9, 15, 18A, 18C International Convention on the Elimination of all Forms of Racial Discrimination, Article 5 |
| Gama v Qantas Airways Limited (No. 1) [2006] FMCA 11 Hunyor, J (2003) “Skin-deep: Proof and Inferences of Racial Discrimination in Employment” Sydney Law Review [2003] Vol.25:535 |
| Applicant: | WILLIAM GAMA |
| Respondent: | QANTAS AIRWAYS LIMITED |
| File Number: | SYG 1488 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 October 2006 |
| Date of Last Submission: | 13 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2006 |
REPRESENTATION
| Applicant in Person 26, 27 June; 3 August; 13 September 2006 Counsel for the Applicant: | Ms P. Gormly |
| Solicitors for the Applicant: | Agostini Jarrett 14, 17 February; 26 June 2006 |
| Counsel for the Respondent: | Ms K. Eastman |
| Solicitors for the Respondent: | Mallesons Stephens Jaques |
ORDERS
The Respondent to pay the applicant $71 692.70 as damages including interest for breach of s.9 of the Racial Discrimination Act 1975 and s.15(2)(d) of the Disability Discrimination Act 1992.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2005
| WILLIAM GAMA |
Applicant
And
| QANTAS AIRWAYS LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding William Gama, the applicant, alleges that he suffered acts of discrimination by his employer Qantas Airways Limited (“Qantas”) in breach of ss.5, 15 and 123 of the Disability Discrimination Act 1992 (the “DDA”), and ss.9, 15 and 18A of the Racial Discrimination Act 1975 (the “RDA”). The claim under s.9 of the RDA is that Qantas discriminated against Mr Gama on the grounds of race during the course of his employment by doing acts which had the purpose or effect of nullifying or impairing his recognition, enjoyment or exercise on an equal footing of his human rights and fundamental freedoms. The particulars of this allegation include the use of racist comments by co-workers and superiors, discriminating against Mr Gama in relation to reporting requirements and general treatment with respect to sick leave and work attendance. The claim under s.15 of the RDA is that Qantas discriminated against Mr Gama by reason of his race by failing to offer him the same conditions of work and opportunities for training and promotion as was made available to other employees. Mr Gama was never given a promotion during his employment and after 1998 the applicant alleges that his supervisor, Mr Hulskamp, deliberately forwarded on applications late so that they were invalid. Mr Gama claims that Qantas is vicariously liable for the breaches of the RDA pursuant to s.18A of the Act because of the awareness by the managers within his section of the racial comments and actions of the other supervisors and employees.
The complaints of disability discrimination arise out of the alleged treatment of Mr Gama following him suffering injuries at work and the sequelae of both those injuries and their treatment. It is alleged that the applicant was treated less favourably because of his disability than the respondent would have treated other persons without the disability. The complaint under s.15 of the DDA is that after January 1998 Qantas discriminated in employment against Mr Gama on the grounds of his disabilities by denying him access to, or limiting his access to, opportunities for promotion, transfer or training. Mr Gama alleges that Qantas is vicariously liable for the actions of its employees pursuant to s.123 of the DDA because the discriminatory conduct that was engaged in by those persons was within their actual or apparent authority and that Qantas failed to take reasonable precautions or exercise due diligence to avoid the conduct.
Mr Gama is a licensed aircraft mechanical engineer (“LAME”) who emigrated from the United Kingdom, where he worked for British Airways, in 1982 after Qantas had intimated that there would be work available for persons with his qualifications. When he arrived there was no such work available, but he worked in a lesser capacity until 27 February 1984, when he commenced employment as a LAME. Mr Gama worked in the Heavy Maintenance section. In 1992 he suffered his first injury at work when he fell into a gap between the right main door of an aircraft and the adjacent docking. As a result of this injury Mr Gama developed bilateral epicondylitis. In January 1995, Mr Gama suffered a right elbow injury and in September 1995 he moved to the thrust reverser workshop. He remained there until January 1998 when he returned to the Heavy Maintenance line 2 position. In 1998, Mr Gama tripped and injured his shoulder at work and was also diagnosed with a bilateral inguinal hernia. This was repaired on 19 November 1998. Workers Compensation was claimed for this injury and was initially accepted but later declined. Between late 1998 and mid-1999 various matters concerning Mr Gama’s compensation claims brought him into contact with Qantas management. On 23 April 2000 Mr Gama injured himself when he tripped on a tow bar. He was off work until 4 May 2000 when he returned to work on light duties which continued until 28 August 2001, with an interruption after Mr Gama had an operation in July 2000 which kept him out of work until March 2001.
During his time off work and on light duties Mr Gama was constantly being assessed by Qantas to see whether he was capable of returning to his former duties. Eventually Qantas’ doctors indicated that he could not return to his former duties on 26 March 2002, at which time there was a dispute between Mr Gama’s doctor and the Qantas doctors as to his ability to return to work. Qantas sought to terminate him. Mr Gama involved his union in the dispute and the termination was deferred pending a further assessment of Mr Gama’s abilities to perform his duties as a LAME on 2 May 2002. But by this time Mr Gama began to suffer from depression. On 20 May 2002, his wife called Qantas and informed them that he was in a deep depression and would not be returning to work for a long time. He has not returned to work since. Mr Gama was involved in legal proceedings in the Workers Compensation Court, in the Australian Industrial Relations Commission (“AIRC”) and lodged a complaint with the Human Rights and Equal Opportunity Commission in July 2003. That complaint was terminated by the President on 16 March 2004 and forms the basis for these proceedings. In Gama v Qantas Airways Limited (No 1) [2006] FMCA 11 I determined as a preliminary point that certain complaints made by Mr Gama in the proceedings commenced in the Federal Court and transferred to this court were not available to be litigated as they did not form part of the complaint terminated by the President. An Amended Points of Claim reflecting this judgment was filed on 30 January 2006.
Inferences and the Briginshaw standard
I incorporate into these reasons the following discussion about the Briginshaw standard and the drawing of inferences in order to explain the law which I have used to guide me in making conclusions as to the standard of proof required, and as to whether any particular inference could be drawn. Having done that it should not be necessary to make further specific references to authority in each case where an inference is or is not drawn.
Law relating generally to the drawing of inferences
Brennan and McHugh JJ in G v H (1994) 124 ALR 353 defined an inference in the context of judicial decision-making as
“a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference: Martin v. Osborne (1936) 55 CLR 367. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle.”
An inference may only be reasonably drawn upon the basis of facts which have been established by the applicant in evidence such that “it is more probable that it exists than that it does not”: per Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301. Where an applicant claims an inference should be drawn:
“There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture. …the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability – a mere scintilla of probability such as would not warrant a finding in a civil action…to such practical certainty as would justify a conviction in a criminal prosecution.” As per Jordan CJ in Carr at (pp306-307).
The judgment in Carr was followed in the oft-cited High Court case Jones v Dunkel (1959) 101 CLR 298, where Kitto J states at [305]:
“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”
See also Peter Li v Joseph Eliezer (1997) (Unreported, NSW Supreme Court, 14516 of 1996; 1 May 1997) at [3]-[7].
The need for “a foundation of objective facts” was discussed by Muirhead J in Nominal Defendants v Owens (1978-79) 22 ALR 128 at [p.130], adopting the statements of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at [169]. Muirhead J goes on to cite with approval the dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264]:
“…the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view. …A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.”
An inference will be a ‘matter of conjecture’ where the circumstances give rise to “conflicting inferences of equal probability”: Richards Evans & Co Ltd v Astley [1911] AC 674 as per Lord Robson at [687]. Lord Robson’s comments were approved in Luxton v Vines (1952) 85 CLR 352, cited with approval by Muirhead J in Owens at [132], where the plaintiff relied on inferences being drawn to establish both the circumstance and cause of his injury and the negligence which formed the substance of the complaint. The majority concluded that no inference could be drawn as the circumstances gave
“…rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference…can reasonably be made”,
given that for whatever explanation provided by the applicant for the accident,
“…reasons of equal sufficiency or insufficiency exist for other explanations.”
Luxton has since been approved: see, for example, Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133.
The Briginshaw test and its application
The onus of proving an instance of discrimination rests with the claimant: Sharma v Legal Aid (Qld) [2002] FCAFC 196 at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 as per Collier J at [48]. The test to be applied to evidence of racial discrimination from which an inference to be drawn is
“…the civil standard of proof on the balance of probabilities. There is no third standard. However, in civil proceedings where allegations of fraud or serious impropriety are made, it has been said that courts should proceed in accordance with the observations of Dixon J in Briginshaw.” As per Hall J in Duhbihur v Transport Appeal Board [2005] NSWSC 811.
The Briginshaw test was enunciated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour stated the decision maker must be “reasonably satisfied” the discrimination occurred:
“…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.” [362]
Whether the onerous Briginshaw test will be applied will depend upon the circumstances of each case and “the seriousness of the allegations in all the circumstances”: as per Fullagar J in Department of Health v Arumugam [1988] VR 319 at [330]. Arumugam established that racial discrimination is a serious matter, not to be lightly inferred: [p.331], approved by Heerey, Mansfield and Hely JJ in Sharma (supra). Arumugam concerned allegations of racial discrimination in the employment of two senior medical staff, which was considered by the court to be of sufficient gravity to warrant the application of the Briginshaw test, although noting that the absence of explanation from an employer for the apparently discriminatory conduct does not constitute sufficient basis for an inference of racial discrimination to be drawn: as per Fullagar J at [p.330].
In Sharma (supra) the issue was again a matter of racial discrimination in employment, with the applicant, a solicitor, claiming to have experienced racial discrimination on several occasions and particularly in relation to the selection process for a promotion. Heerey, Mansfield and Hely JJ held that no discrimination had been proved, discussing the standard the applicant must prove at [40]:
“It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realized it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.
[41] In a case depending on circumstantial evidence, it is well established that the trier of fact must consider ‘the weight which is to be given to the united force of all the circumstances together’. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen (No. 2) (1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.”
Sharma (supra) was most recently applied in Ferrus v Qantas Airways (supra), in which the court considered similar allegations to the present case. In Ferrus the applicant claimed discrimination on the grounds of race and disability, the applicant suffering from depression. Collier J dismissed the application on the ground that it was made out of time, there being no adequate explanation for a six month delay in appealing a termination of the complaint by HREOC, and on the basis that there was not sufficient merit in the claim for it to proceed. Her Honour considered at [48] the relevant principles applicable to the case to have been enunciated in Sharma (supra).
The Briginshaw test has not, however, been applied in every matter of racial discrimination. In Victoria v Macedonian Teachers Association of Victoria Inc and Anor [1999] FCA 1287, O’Connor, Sundberg and North JJ considered the Briginshaw test but declined to apply it to a decision by the State of Victoria to impose a certain name to describe Macedonian citizens, which the court concluded was not discriminatory. The Court opined at [15]:
“The Briginshaw test only becomes relevant when, because of the seriousness of the allegations being made in relation to an issue to be determined in a particular case, a decision-maker must proceed with caution in arriving at a state of satisfaction.”
The Macedonian Teachers (supra) case cited with approval the dicta of the High Court in G v H (supra), a case which concerned a question of proof of paternity under the Family Law Act 1975 in relation to a refusal by the respondent to submit to a parentage test. Their Honours Brennan, Dean, Dawson, Gaudron and McHugh JJ considered the Briginshaw test and noted at p.362:
“Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided.”
In Murray v Forward & Merit Protection Review Agency [1993] HREOCA 21, the issue of complaint was the way the applicant was treated during an internal grievance process. The applicant alleged the manner in which she was treated indicated racial bias on the part of the director of the review agency who handled her employment-related complaint. The Commissioner concluded there was not enough evidence to establish that discrimination had occurred, and stated, after acknowledging that to find discrimination he would have to exclude all other inferences that might reasonably be open
“…I am sensitive to the possible presence of systemic racism, when persons in a bureaucratic context can unconsciously be guided by racist assumptions that may underlie the system. But in such a case there must be some evidence of the system and the latent or patent racist attitudes that infect it. Here there is no such evidence. Consequently there is not evidence to establish the weight to be accorded to the alleged stereotype.” [4]
It is now accepted in the Australian jurisdiction that there is no need for an applicant to prove that the respondent had an intention to discriminate on the grounds of the applicant’s race or disability: Waters v Public Transport Corporation (1991) 173 CLR 349, 359 as per Mason CJ and Gaudron J; see also Kiefel J in Creek v Cairns Post [2001] FCA 1007 at [19]-[23]. Some difficulty still arises for applicants in proving that there is some causal nexus between their race, or disability, or both, as the reason an adverse decision has been made. Accordingly there has been some discussion as to how widely phrases, such as “based on” in s.9 of the RDA, should be construed and what test is applied to establish a causal nexus between the act and the disability, race, gender and so on.
In Madedonian Teachers (supra) Weinberg J adopted the primary judge’s construction that “based on” is to be equated to “by reference to” in a consideration of whether racial discrimination occurred under s.9 of the RDA: [8].
In Purvis v State of New South Wales (2003) 202 ALR 133 Gummow, Hayne and Heydon JJ noted:
“For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.” [236]
In Cairns Post (supra) Kiefel J adopted the reasoning of McHugh J in Waters v Public Transport Corp (supra), where his Honour stated at [200]-[401]:
“The words ‘on the ground of’ and ‘by reason of’ require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (‘the victim’). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.”
Kiefel J notes at [24]:
“In my respectful view the approach taken by McHugh J gives meaning to words such as “on the ground of” and “because of”. The need to have regard to the plain words of the sections was discussed in some detail by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Minds Ltd (1993) 46 FCR 301, 322. Beyond that the matter is one of factual enquiry.”
Dowsett J considered this question of causal connection in Baird v Queensland (No.1) [2005] FCA 495 in relation to the requirement in s.9 that the relevant act be “based on race”. His Honour states at [139]:
“Were the matter free from authority I would be inclined to the view that the expression "based on" should be construed by reference to the verb "base" which, in the Shorter Oxford Dictionary, is defined as follows:
‘1. Make or act as a foundation
2. Found, build, or construct (up) on a given base, build up around a base, ... provide with a base; establish securely.’
[140] In other words, the relevant distinction, exclusion, restriction or preference must have race as its basis. However such an approach may be inconsistent with the decision of the Full Court in Victoria v Macedonian Teachers’ Association of Victoria Inc (1999) 91 FCR 47. The Court upheld a decision of Weinberg J, reported at (1998) 91 FCR 8. The effect of that decision is that the words "based on" have a meaning which includes ‘by reference to’, but do not mean ‘by reason of’. In particular, the expression involves no requirement for a causal connection between race and the relevant distinction, exclusion, restriction or preference. The notion of a causal connection is not necessarily the same as a basal relationship. A consideration may be the "basis" for a particular action without being the cause of it. I consider that to say that an action is ‘based on’ a particular consideration is to say rather more about the connection than that the outcome was ‘by reference to’ that consideration. However I accept, for present purposes, that it is sufficient for the purposes off s9 that the relevant distinction, exclusion, restriction or preference was ‘by reference to’ the race of the various applicants.”
The circumstances which form the context in which the discriminatory acts allegedly occurred are important in the drawing of an inference and the standard which will be applied to the evidence of the discriminatory act:
“In a case depending on circumstantial evidence, it is well established that the trier of fact must consider ‘the weight which is to be given to the united force of all the circumstances put together’. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen (No. 2) (1983 – 1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.” As per Heerey, Mansfield and Hely JJ in Sharma at [40].
In State of Victoria & Ors v McKenna (2000) EOC 74, 249 Smith J cited the decision of Fullagar J in Arumugam before noting at 74, 262:
“…it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individuals, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was made between people of different races. An analysis of the full facts of the case may reveal that that inference should not be drawn. Arumugam was such a case…An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn, even though there is no additional positive evidence to support the drawing of the inference.”
The difficulties of proving discrimination under the various anti-discrimination and equal opportunity legislation was noted recently in a dissenting judgment of Kirby J in NSW v Amery & Ors [2006] 226 ALR 196. In Amery 13 female temporary teachers alleged indirect discrimination on the ground of sex on the grounds the subjection of them by the NSW Department of Education and Training to certain pay scales under the relevant award failed to reflect the value of work they performed as casuals. The majority overturned the decision of the NSW Court of Appeal and concluded no discriminatory act had occurred. Kirby J noted at [86] that the case
“… joins a series, unbroken in the past decade, in which this court has decided appeals unfavourably to claimants for relief under anti-discrimination and equal opportunity legislation.
[87] It was not always so. In the early days of state and federal anti-discrimination legislation, this court, by its approach to questions of validity and application, upheld those laws and gave them a meaning that rendered them effective.
…
[88] The wheel has turned. In no decision of this court in the past decade concerned with anti-discrimination laws, federal or state, has a party claiming relief on a ground of discrimination succeeded. If the decision in the courts below was unfavourable to the claimants, it was affirmed. If it was favorable, it was reversed.”
Hunyor notes in his article “Skin-deep: Proof and Inferences of Racial Discrimination in Employment” Sydney Law Review [2003] Vol.25:535, examining the problem of proof encountered by complainants in racial discrimination cases:
“In Australian jurisdictions…some degree of causal connection between the impugned act and the race of a complainant must be shown. There have been a variety of differing formulations of the appropriate test. These have included requiring a complainant to prove that the ‘true basis’ or ‘true ground’ of a decision was race, or that race was ‘a factor’ in the relevant decision of a respondent.
However, proving the ‘true basis’ of an impugned act will often pose difficulties for complainants in discrimination cases. …In the absence of a clear statement of bias or expression of a discriminatory intention, there may be no direct evidence to support an allegation of discrimination and a complainant may have to attempt to rely upon inferences from the surrounding circumstances – often expressed in terms such as ‘there could be not other reason for the decision other than my race’: Einfield J in Bennett v Everitt (1988) EOC 77,621 at 77,721. In cases involving employment, complainants face particular difficulties.”
Following a discussion of the particular nature of racial discrimination in employment where, beyond direct forms of racism, prejudices and assumptions can result in systemic racial discrimination in the circumstances of employment, Hunyor goes on to note the difficulties for complainants in Australian courts:
“Court have only rarely acknowledged the complexity of racial discrimination and the position of significant disadvantage facing applicants bringing complaints of discrimination. Indeed, some cases have suggested greater concern about the position and reputation of the respondent, having been accused of the ‘serious matter’ of racial discrimination. Even where the disadvantage faced by a complainant has been recognized, this has not necessarily resulted in the development of principles which might be applied to such cases so as to redress that disadvantage.” (at p. 539)
Narrative
Alleged discrimination on the grounds of race
Mr Gama is Goan. He appears to have emigrated to the United Kingdom in the 1960s and worked for British Airways (“BA”) as a licensed aircraft engineer. He was a diligent worker who won recognition for some of his suggestions for improvements in aircraft maintenance from both BA and Qantas. He joined Qantas hoping to receive promotions during the course of his employment. Mr Gama claims that from early in his employment he suffered from racial comments in which he was described as a “black person”. He claims that he was distressed by the general attitude to persons who were not white.
The applicant claimed that in 1992 after Qantas had employed a number of Chinese engineers a large sign had been stuck up on one of the roof beams in a hangar in which he worked insulting Chinese persons. Whilst company witnesses, including Mr Clerke and Mr Hulskamp, denied any knowledge of such a banner, Mr Kwok, who supervised the applicant on a daily basis as his leading hand around 1998, gave evidence that while he did not see a poster in the hangar, he did hear about it. A former Qantas employee, Mr Lee, who allegedly called the applicant a ‘black man’, also allegedly told Mr Gama he was leaving Qantas as a consequence of the intake of Chinese employees between 1984 and 1992. Mr Lee in his affidavit stated that he did not ever call the applicant ‘black’ and did not observe any racist comments against the applicant. Further, Mr Lee outlines in his affidavit that he departed Qantas not because of the ‘Chinese intake’ but because he wished to start up his own business.
Mr Gama claimed that at times throughout the period of his employment the words “Black Willie” were written on the bathroom wall behind movable objects. Several witnesses, including Mr Hulskamp, claimed not to recall any racially discriminatory graffiti on Qantas premises. However this evidence appeared to be in conflict with the evidence of other witnesses and I would be inclined to prefer that evidence. Mr Excell, for example, gave direct evidence that he recalled graffiti directed against people on the grounds of their Asian race. I am satisfied, on the balance of probabilities, that some racial graffiti did appear from time to time in the Qantas workplace. Mr Kwok gave the following evidence in relation to the existence of racially discriminatory graffiti:
Mr Gama: “Did you notice any graffiti in hangar 96?
Witness: “It’s not a perfect world, is it?”
His Honour: “No, if you could just answer the question. Did you notice graffiti in hangar 96?”
Witness: “It’s a hard question, that one.”
His Honour: “Well, I don’t know if it is other than was there graffiti there or was there not graffiti there and if you did notice it, then you must say so.”
Witness: “I think yes.”
I then asked Mr Kwok questions about the poster allegedly hung in one of the aircraft hangars.
His Honour: “You heard about it?”
Witness:“Yes, they’re not stupid enough to put it on a wall to let you have a go at them but you heard about it, but not only Chinese. It’s not only Chinese. As long as you’re not Aussie, basically, every now and then you hear those sorts of things. You just get used to it. It’s not a perfect world as I said before in the beginning.”
Mr Gama sought to give evidence that co-workers would take a blank sheet in to the photocopying room, photocopy it so that it came out black, hold it up and say words to the effect “Willy here is your photograph, what a strong resemblance”. I struck this evidence out of Mr Gama’s affidavit because he was unable to give any particulars about who did this or when. There was, however, cross examination about the incidents. They were denied by the Qantas witnesses. In the circumstances I am unable to make a finding that they took place.
Mr Gama complained of other incidents. There was one in 1998 when a colleague, Chris Dalsel, said words to him to the effect “I am trying to think who you look like”, after which his supervisor Mr Hulskamp said “Like a Bombay taxi driver”. These words and some subsequent references to Mr Gama as being a ‘black’ allegedly caused much merriment within the workplace.
In September 1998, Mr Gama complains that whilst walking painfully up a flight of stairs a colleague, Mr Simpson or a Mr Talentire, said to him words to the effect “Being black you should be walking up the stairs like a monkey.”. Mr Simpson denied in his affidavit that he had said those words to Mr Gama at that time or at all, and that evidence was not challenged in cross examination.
However, evidence was given from which an inference could be drawn that there were, at times, discriminatory remarks made by the applicant’s co-workers in regard to his race. Although Mr Harte could not recall directly hearing a joke made about Mr Gama personally, he gave evidence that jokes of a racial nature were simply “how people talk in the work environment” and considered that such comments as being called “a black prick, a black bastard”, which the applicant put to him in cross examination, were to be taken as a joke. Mr Rose gave evidence that the word “boong”, of which Mr Rose indicated in his evidence that he knew the meaning, was used in the hangars, though he did not believe this was used expressly in relation to Mr Gama and the witness stated he did not use the word to address Mr Gama. Mr Rose denied ever using the phrase “nigger in the woods” in reference to Mr Gama, evidence of which Mr Gama gave in court.
Mr Gama claimed that he had made a number of applications for supervisory positions which were not responded to. Early in his employment with Qantas in 1986 he was told by his foreman, Perry Harte, that the company was not ready to have a ‘black’ in management yet. Mr Gama does not use this comment as an example of a particular racial taunt but as a piece of advice given to him by a person who he respected. He considers that it was indicative of the Qantas corporate attitude at the time. After 1998, Mr Gama claimed that any applications for promotion or an internal shift of employment were sent to his supervisor Mr Hulskamp, who, he claimed, either refused to forward on his applications or forwarded them on after the closing date. Mr Hulskamp in his affidavit denies receiving any applications for internal positions or promotions from the applicant, and states that it was not his responsibility to accept or approve job applications on behalf of LAMEs. This evidence was unchallenged by the applicant. Mr Clerke gave evidence that there is a standard application process where a vacancy, which will be internally advertised, arises. Mr Bluestone gave evidence by way of affidavit about this recruitment process, and noted one occasion where Mr Gama was given an interview in April 2002 for a position of Technical Officer but did not attend the scheduled interview. This was not challenged by the applicant, who conversely stated in his affidavit that despite numerous applications for internal positions he was never granted an interview.
Several Qantas staff, however, gave evidence that they did not receive any complaint from Mr Gama. Mr Malcolm McGregor gave evidence by way of affidavit stating that he did not receive any complaints from Mr Gama, in his capacity as the Maintenance Co-ordinator, to whom the applicant’s supervisor would report, regarding the statements made by Mr Lee or any complaints about racist comments made to the applicant. Mr McGregor also stated he did not observe, participate in or hear about any incidents involving workers making any racist comments towards the applicant or taunting him with racist jokes. Mr Gama alleges that he made repeated reports to Mr Hulskamp from January 1998 about the discriminatory treatment he was receiving on the grounds of his race in relation to reporting requirements and general treatment in regard to sick leave and work attendance. Mr Clerke gave evidence that he had no recollection of being advised of any racial discrimination, racial comments or actions directed towards the applicant, and had he received such complaints he would have taken immediate action.
Mr Gama also alleges Qantas management participated in the discriminatory behaviour directly. Mr Gama claims Qantas management did not respond to his complaints and did not make any attempt to stop the jokes and comments where they were made in its presence. Mr Gama alleges that Mr Hulskamp was around at the time the jokes outlined in paragraph 27 were made and made no effort to stop the remarks. Mr Hulskamp gave evidence denying he observed, participated in or was a part of any racist jokes or comments and did not recall Mr Gama complaining to him. He gave evidence that had he received any such complaints he would have dealt with them under Qantas’ EEO policy. Qantas’ Equal Employment Opportunity Policy, found at R25 of the Respondent’s documents, states that “Qantas is…committed to providing a workplace that is free of discrimination”. Where such standards are breached, it states, counselling and disciplinary action will occur. Managers have the responsibility of promoting the EEO principles, which includes:
“providing employees with a positive role model,
ensuring employees are aware of and comply with policies,
reviewing all workplace practices and employment conditions to comply with anti-discrimination legislation,
…
dealing with complaints about discrimination and harassment quickly, confidentially and effectively”.
Similarly employees’ responsibilities include “their own behaviour and actions at all times”, “treating fellow employees and customers fairly and equitably” and “advising their manager if they believe they have been discriminated against to allow prompt resolution”. The policy enunciates that an employee has “the right to make a complaint” to their manager, HR staff, or a formal complaint lodged with Qantas management.
In addition, Qantas’ Harassment Policy (found at [R28] of the respondent’s documents) seeks to promote “a working environment free of intimidation, threat and humiliation”. Under this policy managers and supervisors are “accountable for ensuring proper standards of conduct are maintained in the workplace and that harassment in any form is not tolerated or accepted”. The policy notes that Qantas will be liable to such harassment “unless they can show that they took ‘reasonable steps’ to prevent the harassment from occurring”, which includes ensuring staff awareness of the policy and immediately investigating any complaints.
In cross examination, the applicant only questioned Mr Hulskamp about the incident where it is alleged several of the applicant’s workmates stated he looked like “a Bombay taxi driver”, of which the witness denied any recollection. Mr Hulskamp also denied hearing the suggestion that Mr Gama ‘should be walking up the stairs like a monkey’.
It is Mr Gama’s case that these remarks and treatment outlined above are evidence of an entrenched attitude towards him within the workplace because of his race. He asked me to draw an inference from this evidence that one of the reasons for him not being given any promotion in the period after 1998 and not being sent on any courses by Qantas, which were made available to other employees who were not ‘black’, was the fact of his colour. He also asks me to draw an inference that some of the treatment which he received from Mr Hulskamp, his supervisor, which I will discuss in relation to his disability discrimination claims, was the result of Mr Hulskamp’s racially discriminatory views about him.
It is accepted the applicant was not nominated for training courses. In the absence of any evidence from which I can draw an inference that this failure was discriminatory I must accept the overwhelming evidence from company witnesses that proper procedures were in place and were followed in accordance with the various Qantas’ policies, including policies entitled “Developing people at Qantas” covering development and training, professional qualification and education assistance, the “Transfer and Promotions Policy” and the “Recruitment and Selection Policy”. Evidence was given by Mr Smith and Mr Hulskamp to the effect that Mr Gama never articulated a complaint to them that he was being denied participation in a course on the grounds of his race. It appears from evidence given both in court and by affidavit that there was a set procedure by which employees were allocated to training courses which resulted in Mr Gama not being considered suitable for courses when they arose. Whilst it is perhaps unfortunate that no detailed explanation was ever given to Mr Gama, nor assistance provided to someone who clearly was anxious to progress, there is no evidence from which I could infer that this failure arose out of consideration of Mr Gama’s race or disabilities.
Alleged discrimination on the grounds of disability and/or race
Mr Gama suffered some industrial injuries in 1992 and in 1995. At that time his supervisor was a Mr Brenton Maile. In his affidavit Mr Gama says:
“I was performing “light duties” in the thrust reverser section since 1995. This was a managerial position setting up the workshop from nothing and my achievement was praised by managers Fred McLean and John Webster.”
In cross examination Mr Gama was asked about this. At [T49] there is the following discussion:
Eastman:“You recall sometime in September 1995 you were asked whether you wanted to be moved from Heavy Maintenance and your position as a LAME in Heavy Maintenance to the thrust reverser workshop.”
Witness:“I was asked to move, yes. I didn’t ask them to move [me].”
Eastman:“No that is right, you didn’t make the request to move, Mr Brenton Maile asked you whether you would be interested in moving to the workshop?”
Witness: “Yes that is right.”
Eastman:“And he told you the reason for doing that was in terms of allocating the work in terms of work that needed to be done and the people available to do the work.”
Witness:“I don’t understand.”
Eastman: “Well why don’t I put it this way. What did you understand to be the reason why you were asked to move to the thrust reverser workshop?”
Witness: “Yes, to set up the workshop.”
Eastman: “That was your understanding.”
Witness:“That was what I was told.”
Eastman: “Do you recall whether or not you told Mr Maile that you needed a break from doing some of the work involved in Heavy Maintenance?”
Witness:“Yes that could be a possibility.”
Eastman: “But you don’t remember?
Witness: “No I don’t remember.”
Eastman:“Mr Maile told you that the move to the thrust reverser workshop would be a temporary move?”
Witness: “No.”
Eastman: “He told you that your substantive position remained in the LAME position in Heavy Maintenance didn’t he?”
Witness:“No. He told me it was until I retire.”
Eastman: “He never said that to you did he?”
Witness: “He did.”
Eastman:“And the position that you held in the thrust reverser workshop did not involve any managerial work did it?”
Witness:“No.”
Eastman: “You were not a manager?”
Witness:“No I was a supervisor.”
Eastman:“But you were not a manager.”
Witness:“No.”
Eastman:“And it was not a managerial position.”
Witness:“No.”
Eastman:“And in January 1998 you were then told you were to return to the Heavy Maintenance position and that was to the line 2 position.”
Witness:“Yes.”
We heard from Mr Brenton Maile in relation to this incident. At the relevant time Mr Maile was the manager of Heavy Maintenance lines 1 and 2; he was later replaced by Mr John Clerke. His version was that Mr Gama had approached him and told him that he felt he was getting a bit old for being around aircraft in Heavy Maintenance (a job which involved quite a bit of activity such as clambering around and working with one’s hands above one’s head or in confined positions) and asked if there was anything else that he might be transferred to. At that time there was a need for workers in the thrust reverser workshop, although normally a LAME would not be employed there. Mr Maile, who I took to be sympathetic to Mr Gama, arranged with the supervisor of the workshop to have him moved there and continue being paid as a LAME, which was at a higher rate than anyone else received in the workshop except the supervisor. He remained in that section for three years where the work was considerably lighter than that which he had been undertaking in the Heavy Maintenance area. Mr Maile did not accept that Mr Gama held a managerial or supervisory position in the thrust reverser section although I accept that as a licensed engineer he may have had more to contribute within the workshop than non-licensed engineers. Mr Keith Clark, the General Manager of all the Heavy Maintenance lines from 1994, gave evidence by way of affidavit in which he recalled an informal discussion with Mr Gama about the applicant’s movement from the thrust reverser section, but did not recall in that conversation Mr Gama referring to the reason for his move being his disability. Mr Clark further stated that he did not use the words attributed to him in the meeting by Mr Gama, that he could not “carry too many disabled people in the thrust reverser section”. This evidence was unchallenged by the applicant.
After Mr Maile left his position in the Heavy Maintenance line there was a move to return Mr Gama to that area. By that time Mr Hulskamp had been appointed as the supervisor. Mr Hulskamp had been a LAME with Mr Gama but he had been promoted into management. He was one of the people Mr Gama says made racially discriminatory comments. Mr Gama was not happy about returning to the Heavy Maintenance line other than in some supervisory capacity. When he first arrived Mr Hulskamp was on leave. Mr Gama worked in the Heavy Maintenance line until 19 November 1998 when a bilateral hernia, which had been diagnosed in late September 1998 following complaints of stomach pains from May 1998, was surgically repaired. On 8 September 1998 Mr Gama had tripped and injured his shoulder taking some weeks off work. Mr Gama alleged that Qantas had not paid the cost of the hernia operation or his wages whilst off work and he took this up with the company in December 1998. He was told he had not completed the required documentation. Following the submission of a medical certificate, and later a Workers Compensation claim, payment was made. On about 26 December 1998 Mr Gama returned to work. He had a medical certificate restricting him from certain heavy work but on 2 January 1999 the hernia scar started to bleed and he was given further time off work and lodged Workers Compensation claim forms. On 21 January 1999 Qantas received a report from Dr John Davis advising that Mr Gama would be able to return to work but had to avoid heavy lifting and on 1 February 1999 Dr Davis provided certain work restrictions.
Mr Gama claims that on 23 January 1999 Mr Hulskamp called him up and said words to the effect:
“You are just manipulating the system by deliberately going on pre injury duty. Qantas does not provide light duties for normal people who happen to get sick. I won’t accept your sickness application or your workers compensation application.”
Mr Gama alleges that on 23 January 1999 he attended a meeting of the engineers on his shift when Mr Hulskamp made a comment in front of the whole room with words to the following effect:
“Here is a man who knows how to manipulate the system, double dipping on sick leave and workers comp, Qantas does not provide light duties for normal sick people.”
Mr Hulskamp was questioned about the meeting at which it was also alleged by the applicant that he had made comments in relation to problems with filling in Workers Compensation forms, and stated words to the effect “Ask Willy, he is used to filling in compo forms”. The witness denied this, as did Mr Thorn, another attendee, in his affidavit. Mr Thorn also denied suggesting to Mr Gama after the meeting that he complain on the account of the “character assassination” which Mr Gama alleges he experienced in the meeting. The nearest the applicant’s case got to a corroboration of this allegation is the evidence of Mr Kwok, who recalled that the applicant had become upset about a remark that was made at a meeting. Although I have no doubt that Mr Hulskamp was at all times attempting to give his evidence truthfully, he did appear to have a rather poor recollection of any matter in which he might have been the subject of criticism or findings. In the circumstances, and in regard to this particular incident, I prefer the evidence of the applicant and am satisfied the remark was made.
After Mr Gama returned to work he says that in March 1999 a Mr Don Drake, a co-ordinator in the Heavy Maintenance area, read him an internal memo which he said had been sent to all co-ordinators and managers advising that Mr Gama’s injuries and sicknesses were “all in his head” and was required to treat all claims by Mr Gama with suspicion and refer them to Mr Hulskamp. Mr Gama was not given a copy of the memo but spoke to one Yvette Hafer, the rehabilitation co-ordinator, who told him that she had written it on the instructions of Mr Hulskamp. Mr Hulskamp gave evidence that whilst he recalled writing a memo at this time, he did not recall the content of that memo and denies that he wrote such a memo. He also denies that he instructed any employee or Yvette Hafer to write such a memo. Ms Hafer was not called to give evidence. The memo was included in the original subpoena served upon the respondent, however the respondent was unable to identify a document which met that description despite numerous searches [T14, 3 August 06].
In Mr Gama’s affidavit he makes no reference to any period between March 1999 and 2002, but at the hearing he accepted that he was not working at full duties and without incident during this time. In July 2000 he had surgery on his right shoulder. He claimed that thereafter he contracted a golden staph infection which kept him off work for some period in addition to the shoulder problems. There was some confusion as to whether or not Mr Gama underwent an arthroscopy during that year. In any event he returned to work in March 2001 on light duties.
Thereafter there appears to have been a pattern of Qantas seeking to discover whether or not Mr Gama would ever be able to return to his full duties. Mr Gama and his doctors indicated that he would. Qantas sent Mr Gama to medical practitioners who tended to the opposite view. The rehabilitation program put in place by Qantas provided Mr Gama with light duties and there was an availability within it for him to seek a transfer to another, less physically demanding position. In March and April 2002 Mr Gama did apply for a number of positions and was not accepted for any of them. He claims that pressure was placed upon him and that Qantas had made it clear that they wished to terminate his position. He claims that he was constantly checked up upon by Mr Hulskamp who required him to report to his office at 8.00a.m. each morning before he commenced duties for the day during the period of his rehabilitation. One of the applicant’s major complaints involving Mr Hulskamp’s management of him during the period of his rehabilitation was this requirement he report to Mr Hulskamp daily. Mr Hulskamp’s evidence was that this arose out of a complaint from the librarian in the technical publications department, where Mr Gama was assigned on light duties, concerning the applicant’s time keeping; the witness gave evidence that having Mr Gama report directly to him was his response to that complaint.
This complaint was outlined in an email from Phillip Zuber to Deborah Polverino dated 15 February 2002, where he states:
“Please be aware the Library no longer has duties for William Gama.
The nature of our work requires continuous focus and application with a minimum of supervision.
Unfortunately this has not been the case with William. He has been far from focused and we are not in a position to supervise his movements.” [R11 of Respondent’s bundle of documents]
I do not have any written contemporaneous evidence about this action of Mr Hulskamp. I accept that this daily reporting by the applicant occurred, but Mr Gama has not satisfied me through his cross examination of Mr Hulskamp that the procedure effected a differential treatment of him from a person without his disabilities but whose timekeeping was erratic, or that it was causally connected with his disability or race. Mr Hulskamp further did not recall asking the applicant why he was not present at 8a.m. on one occasion in 2002.
Mr Hulskamp also stated in his affidavit, which was not challenged, that the reason the applicant was required to report to him each morning was in order for light duties to be assigned, which occurred on a daily basis.
The applicant also says that unlike other colleagues he was required to individually submit daily work attendance forms to Mr John Clerke for his approval and that when Mr Clerke was away he did not receive his wages. He claims that he was the only worker who had to have his wages form signed by the manager prior to being paid. Mr Clerke denies that there was any such requirement that the applicant have his forms individually submitted, but noted that when his supervisor was unavailable he would sign the forms. He also recalled an occasion when the applicant was in his office on light duties away from his hangar offering to sign the applicant’s attendance forms. Mr Clerke denied that the applicant’s wages were withheld except for one occasion when the applicant was away from more than a week and his leave type had to be determined.
The applicant claimed that at times his pay was delayed or withheld. Ms Muggleton, a payroll clerk with Qantas at the time of Mr Gama’s employment, gave evidence that she was not under any pressure from any person in authority or otherwise in relation to matters of pay. Specifically she could not recall either Mr Clerke or Mr Hulskamp asking her to delay the applicant’s pay. Ms Collins gave evidence that there was at some stage a clerical error in relation to Mr Gama’s staff travel payments. This error was rectified at a later date. The witness denies that the error was made as a result of any discriminatory action on the part of herself or her staff. There is no evidence that it was, and I am not prepared to draw such an inference.
Mr Gama deposes to the fact that he had made several applications for redundancy but he was not successful in this although no dates were given. He also says that he had been told by Deborah Polverino, a Rehabilitation Co-ordinator, that she had been advised by Mr Clerke and Ms Collins, the HR manager, not to assist him in finding any jobs suitable for his disability. Ms Polverino gave evidence that she did not recall being told this by Mr Clerke. Ms Polverino gave evidence that her role as Return to Work Co-ordinator was to help injured employees
“…return to their pre injury duties and where we can, and it’s not our main role, to assist people to redeployment if they can’t return to their main job.” [T303]
Ms Polverino gave evidence that where, for example, an applicant was given a favourable report by his doctor, as with Dr Viglione’s report, the decision as to whether the applicant could do the inherent requirements of the job or modified duties was not her decision but that of the relevant operational department. That decision of management in that Department would be reported upon to HR and Operations. [T309]
The applicant sought to bring forth evidence that the respondent treated other employees with a disability preferentially in the redeployment of those employees within Qantas where those employees had suffered an illness or injury. Firstly Mr Gama sought to obtain evidence from Mr Clerke about preferential treatment of certain persons, for example in being given leave not to enter fuel tanks where the employee was overweight. The witness agreed that some people were excused from this task on this ground on the basis of their disability. But Mr Gama was unable to secure any admission or evidence that would allow me to infer that he was adversely and discriminately treated by the witness when the witness had suggested that he was unfit for his full duties. Mr Clerke’s attention was also drawn to a named individual, Mr Hoy, who was disabled in his right arm, but the witness indicated that this individual had not worked for him since his accident and therefore there could be no inference drawn that Mr Hoy was treated more favourably than the applicant from his evidence.
Mr Clerke was asked why three employees of Anglo Celtic extraction were given jobs in Qantas after injury whereas the applicant was not, nor was another named Indian gentlemen. The witness responded that he had no knowledge of the disability of one of the persons mentioned and that of the others one was not under his control, and the third he did not recollect at all. As regards the Indian gentleman the witness thought he had taken voluntary redundancy.
Mr Clerke was also questioned in relation to a position given to Mr Allenby which involved light duties in Brenton Maile’s department. The applicant claimed this position was given preferentially to Mr Allenby and not to him on account of his race. Mr Clerke gave evidence that he did not recall the events surrounding an interview with the applicant when he complained of differential treatment given to Mr Allenby who was allowed to fill this position that Mr Gama had applied for. Mr Clerke does not recall speaking with the applicant about the position, and he stated that regardless he could not put people into Mr Maile’s department. Mr Clerke gave evidence that Mr Allenby was a senior LAME trained on airplanes and engines and was familiar with all maintenance procedures on Boeing 767 aircraft. That experience was necessary in the position, which was the reason Mr Allenby was appointed and Mr Gama was considered not sufficiently qualified, in addition to the fact that Mr Gama did not have the requisite CASA air frame licence on the Boeing 747 and 767 series.
Mr Clerke was asked several questions about other matters in regard to which the applicant felt slighted or poorly treated, but he denied knowledge or recollection of the incidents. In the absence of any corroborative evidence it is not possible to find that these allegations (which were certainly not established to have been unlawful or discriminatory in themselves) are substantiated.
Mr Gama claims that the respondents failed to give him access to a transfer to a position which was in accordance with the restrictions on his employment as a result of his injuries. Evidence was given by a Qantas company witness, Ms Polverino, who worked as the Rehabilitation Coordinator and General Reliever during the subject period. She did not recall being told by either Mr Clerke or Ms Collins not to assist the applicant in finding jobs suited to his disability. Ms Polverino’s role was to liaise with Mr Gama’s manager and supervisor to provide appropriate suitable duties, with a new return to work plan drawn up each time Mr Gama got a new Work Cover certificate. Ms Polverino could not recall Mr Clerke quashing an agreement made between herself and Mr Gama. Her role did not include assisting redeployment for an employee where he or she is unable to return to his or her other pre injury duties. Ms Polverino recalled, in reference to an email from Mr Clerke to Mr Mills, copied to Ms Polverino, shown to her in cross examination, a referral being made to an independent assessor for a workplace assessment to be done with regard to Mr Gama in light of the restrictions in place due to his injury. Ms Polverino stated there was a job assessment done of Mr Gama’s duties in the workplace, and gave general evidence that where modified duties are being considered it is an operational department’s decision as to whether such a modified position is available. That decision was then placed in the hands of the Operations and Human Resources departments.
Mr Gama claimed that there was a concerted effort to terminate his employment. Mr Gama cited several events as evidence for this claim, which Mr Clerke denied. Mr Gama also put to Mr Smith in evidence that Mr Smith had walked past Mr Hulskamp’s office where Mr Gama was sitting and told him words to the effect “Willy, they’re going to sack you”. No evidence was given either in court or in an affidavit about the conclusion of that conversation
Mr Smith also gave evidence in his affidavit that he denied saying words to Mr Gama to the effect that John Clerke, Peter Hulskamp and Vicky Collins were determined to sack him, and further denies in his affidavit that any of these persons had said words to that effect to him. Mr Smith was not called to give evidence. Ms Collins denied that she was determined to sack Mr Gama, and also denied that she approached Mr Gama in the canteen with Mr Clerke and said to Mr Gama words to the effect “Oh by the way Willie, we are still working on your termination”. Similarly Mr Clerke denied any such conversation took place.
The complaints made by Mr Gama concerning the alleged racial discrimination which he suffered depend entirely on oral evidence. But the complaints he made concerning Qantas’ attitude towards his injuries and in particular its attitude towards his continuation in its employment (which he says was caused by its views as to his disabilities and/or race) is an area in which a substantial number of documents have been produced. The applicant complained long and loud about the quality of the responses by Qantas to his subpoenas. He claimed that many documents, including the witness’ diaries and some letters about the applicant were among the missing documents which the applicant claimed were within his personal file. An affidavit sworn by Mr Gavin Kable, the Qantas Manager of Workplace Change and Business Improvement within the People Department of Engineering, on 23 June 2006 stated that despite several searches he was unable to locate the personal files for Mr Clerke and Mr Hulskamp which were subpoenaed by the applicant. This is unfortunate, but given that the records requested were for dates between the late 1980s and 2002 it is perhaps understandable. It is however instructive to look at the documents which were produced by the respondent.
Medical and other documents relevant to termination of the applicant’s employment
On 25 September 1999 Mr Gama’s doctor, Dr Wayne Viglione, provided a report to a Mr Theo Menounos. In that report Dr Viglione draws the following conclusions in regard to Mr Gama’s physical state at that time.
“Mr Gama is a 54-year-old aircraft engineer who has severe diffuse bilateral upper limb pain. There is no significant diagnosis that could explain the diffuse nature and severity of his symptoms. His symptoms have been aggravated by the condition of his employment i.e. the posture and the loads he has to lift and by three accidents…which all occurred at work. I believe the accidents and the conditions of his employment are causative of his current pain even though an exact diagnosis cannot be made.
…
Employment
Mr Gama remains at work despite the severity of his symptoms. I suspect that he will remain at work in his current job, which he tells me he enjoys, unless it become financially advantageous not to remain employed.
This is not to say that he would not be best served by seeking less strenuous work in positions consistent with his skills and experience.” [sic]
On 31 May 2001 an email was sent to Mr Gama by Mr Clerke, the manager of Heavy Maintenance lines 1 and 2. The email is in the following form:
“Dear William
Over 9 months have now elapsed since the commencement of your rehabilitation programme.
Over this period of time, Qantas has provided suitable temporary duties and has assessed the regular medical reports provided by both your treating doctor and our own rehabilitation consultant.
As indicated at the beginning of your rehabilitation, it has been our objective to return you to your normal pre injury duties once you are fit to do so. However, this has not been possible to date and the most recent medical assessments indicate that it is unlikely that you will be capable of returning to your position of Licensed Aircraft Maintenance Engineer (Mechanical).
In light of this advice, it is now appropriate that your employment status be reviewed. Two options are immediately available.
Firstly, you may apply for a medical termination. Under these circumstances, you are eligible to apply for certain benefits under the provisions of the Qantas Staff Superannuation Plan. If you wish to consider this option, please contact Marilyn Loyer, Superannuation Advisor on 9691 5681 for further details.
Secondly, you may seek permanent re-deployment within Qantas to a position that can accommodate your restricted functional capacity as detailed within the most recent medical assessments. If you wish to pursue this option, Qantas will assist you by offering a vocational assessment through an independent rehabilitation provider. This assessment will identify current and potential skills, assist with job seeking, develop your resume and other related advice.
A three month period will be identified, that is up until 31 August 2001 in which you can actively seek redeployment. If, at the conclusion of this time frame you have not been successful in gaining redeployment, your employment will be terminated on medical grounds, and you will be eligible to apply for the medical termination benefits specified above.
Should you have any queries relating to anything contained in this letter, please do not hesitate to contact me.
Yours sincerely
John Clerke
Manager, Heavy Maintenance Line 1 and 2”Mr Gama had no intention of applying for medical termination. He contacted his union and they wrote to the company on 19 June stating that Mr Gama had not been provided with a full copy of the Qantas Workers Compensation, rehabilitation and/or injury management policies and indicating that:
“At this stage it is Mr Gama’s intention to continue rehabilitation to suitable LAME duties.”
On 14 August 2001 Yvette Hafer wrote to Vicky Collins under the heading “William Gama – 12 months medical termination”:
“Dear Vicky
William Gama has a clearance to return to his pre injury duties from the 23/08/2001.
Just to let you know!* If this changes I will let you know. He has medical reports from his specialist that indicate this clearance is consistent with his current condition.
Regards
Yvette Hafer”
*The exclamation mark after the words “just to let you know” might suggest that Mr Gama had a certain notoriety with the Qantas workplace and that his employment was the subject of some considerable attention. But even if that were the case (and it can only be inferred) it does not prove that the cause of this attention was either his colour (race) or his disabilities.
On 9 November 2001 Mr Gama was examined by Dr J Brian Stephenson, consultant orthopaedic surgeon to whom he was referred by Qantas’ Workers Compensation solicitors. Dr Stephenson’s opinion was:
“OPINION I understand Mr Gama is working with Qantas as a licensed aircraft maintenance engineer. He should be able to do some lighter duties in that field, particularly if working with other engineers or apprentices. He could have difficulty with a lot of heavy manual labouring type work. He does have quite marked restriction in range of motion of the right shoulder. The history is consistent with previous carpal tunnel syndrome, at least involving the right hand and wrist.”
On 8 January 2002 Mr Gama’s treating orthopaedic surgeon Dr Wayne Viglionie reported. His report is summed up in the following final paragraph:
“I can’t do anything other than maintain that he is unfit for certain work practices including working at or above breast height or lifting to this level and the heavy use of a hammer. Bill had certainly a lot of degenerative change within the supraspinatus tendon which was extensively delaminated when I did his repair and certain residual symptoms are to be expected. He is probably not going to improve on what he is at the present time.
With kind regards,
WAYNE VIGLIONE”
On 30 January 2002 Mr Gama received a further memo from Mr Clerke in the same terms as the one previously set out. At that time Mr Gama was working in the library. On 15 March 2002 Mr Clerke wrote to Mr Gary Norris of the Australian Licensed Aircraft Engineers Association:
“Dear Gary
I am in receipt of your letter of the 19 February 2002 regarding the above employee and wish to advise as follows:
1. William has been involved in a rehabilitation program for an extended period of time now, the aim of such program to assist him in returning to full duties as a LAME.
2. So far this has not been successful and he still has only been cleared by his Doctor for restricted duties.
3. I have been advised by our workers compensation and rehabilitation people, that it is unlikely that William will be fit for pre-injury employment. Given the advice, he is being managed in accordance with company rehabilitation policy.
Please feel free to contact me if I can provide any further assistance.
Yours sincerely
John Clerke
Manager Heavy Maintenance Line 1 & 2”Whilst it is not denied by Mr Gama that Qantas were providing him with light duties he maintains that that part of the rehabilitation policy which was intended to assist him to move permanently to a suitable post was not being effected. The Qantas Rehabilitation Policy [R22] outlines Qantas’ commitment “to the restoration of employees with work related injuries or illness to the fullest physical, psychological, social, vocational and economic usefulness of which they are capable”. It sets out certain commitments of the company, including providing “suitable duties for an injured employee as an integral part of the rehabilitation process” and ensuring that “participation in a rehabilitation program will not, of itself, disadvantage an injured employee”. Managers are responsible for “identifying suitable duties and reviewing the employee’s return to work program in conjunction with Rehabilitation Coordinator”.
On 26 March 2002 Dr Viglionie responded to a fax from Total Injury Management on behalf of Qantas concerning Mr Gama’s condition. Dr Viglione indicated that he did not think that Mr Gama would be able to return to his full pre-injury duties and that his current restrictions were that he “should avoid overhead use of the right arm.”
On 24 April 2002 Dr Sinclair, Qantas’ Company Doctor, wrote an email to Deborah Polverino which formed an exhibit to the affidavit of John Herbert. In that email Dr Sinclair noted that he had rung Dr Desai, Mr Gama’s general practitioner, in William’s presence and with his permission. The email states in regard to that conversation:
“I explained to Dr Desai that the Company had several reports from Dr Viglione which indicated that William would not be able to return to his normal work as a LAME. Dr Viglione had indicated several other types of role that William could play. However despite this Dr Desai has written out a fit for normal duties certificate for William recently. Dr Desai said that the shoulder felt good to William now and William wanted to give it a go and that was why he had written out the full clearance. I said that the Company did not want to accept this because of the risk of reinjury and I pointed out that late last year a reinjury to William had occurred under similar circumstances, and that was why we did not wish to attempt the same again.
Dr Desai said that he was not fully aware of William’s full duties and that if we sent them he would look at what restrictions should be in place.” [R17]
On 24 April 2002 Douglas Mills sent an email to John Clerke and stated
“I have reviewed the documentation for William Gama. In particular, I note the comments from IRS stating that Dr Viglione has indicated that Mr Gamma will not be able to return to work as a Licensed Engineer.
I note with interest the letter from Gary Norris, dated 19 February 2002, stating that there was no medical evidence to suggest he could not perform his pre-injury duties.
…
There should be no problems in progressing this matter as a standard medical termination. We need to be able to show that we have endeavoured to assist him in finding suitable alternative duties.” [Exhibit E]
Around this time Mr Gama began to show symptoms of depression. He had been to see his GP Dr Mary Ambrose but had not responded to treatment and was referred to Dr Wendy Orlay, a consultant psychiatrist. Dr Orlay gave evidence in a manner in which I considered to be impressive. Although cross-examined thoroughly by Ms Eastman and despite being aware that her reports, diagnosis and prognosis have been the subject of consideration by Dr Walden on behalf of the respondents, she maintained her view that Mr Gama’s very depressed condition was more likely to have been caused by the matters about which he complained in the workplace than his complaints being a perception resulting from his depression. Dr Orlay arranged for extensive physical tests to be conducted on Mr Gama for the purposes of excluding some physical cause for his depression such as exposure to aviation fuel. She expresses the view that whilst there might be a connection between hydrocarbon-related neuro-behavioural toxicity this has not been established in Mr Gama’s case and she prefers his alleged treatment at Qantas as a causative factor. I reproduce below her prognosis and comments re causation of illness.
“Mr Gama became ill during a time at which he reported being repeatedly discriminated against on the grounds of his race. This theme dominated every session of his therapy with me for many months and still does to some extent. In my view the nature and timing of his symptoms suggest the symptoms were likely to have been directly triggered by the discriminatory acts.
Mr Gama may turn out to have a neurodegenerative disorder due to aviation fuel exposure or some other cause. There are no risk factors for any other cause of neurodegeneration in Mr Gama e.g. no vascular risk factors, no other toxins like alcohol, no other metabolic diseases. There is an emerging literature supporting the notion of hydrocarbon-related neurobehavioral toxicity with symptoms including anxiety, depression and cognitive deficits like Mr Gama’s in which case it is possible that exposure to aviation fuel was a causative factor. If Mr Gama does turn out to have a neurodegenerative syndrome due to whatever cause then his current clinical picture (anxiety, depression, cognitive impairment) may have evolved in the absence of racial discrimination.” (Report dated 6 October 2005)
Dr Barnett, to whom Dr Orlay referred the applicant, stated in his report of 1 February 2005 that he did not think there was good evidence to support a diagnosis of a progressive neurodegenerative disorder.
On 10 May 2002 Mr Paul Gan, a physiotherapist, provided a workplace assessment report of Mr Gama. Mr Gan is employed by Workright, Occupational Rehabilitation Service and performed the assessment for Ms Deborah Polverino. The report refers to Dr Viglione’s reports of 8 January 2002 and 30 April 2002, and the conclusion drawn by Dr Viglione that the applicant should have restrictions of “no working about shoulder height” and “no heavy use of a hammer”. Mr Gan concluded as follows:
“Discussion
When looking at his duties as a Licensed Aircraft Maintenance Engineer at Qantas (LAME) Mr Gama is required to
·lift and carry heavy aircraft and engine parts weighing up to 20-25 kg
·forcefully push and pull through his arms and shoulders
·lift and carry up to 10-15kg overhead
·work overhead for prolonged periods
·pull himself up through his arms and shoulders when climbing into engines, wheel and other compartments of the aircraft
·repetitive use his arm and hands through range when performing his duties.
Therefore these duties do place a lot of load through Mr Gama’s right shoulder and he would need to be fully fit to perform his duties.
Dr Viglione his treating specialist on the 30.4.02 has cleared him fully fit for work. However Mr Gama was cleared fully fit for work previously and when he returned back to his normal duties as a LAME at Qantas he had further exacerbations of his symptoms and was placed back on suitable duties. Therefore it may be beneficial to send a copy of the workplace assessment to Dr Viglione and further liaise with him on whether or not Mr Gama is fit to perform these duties.”
On 20 September 2002 Dr Viglione responded to the report of Mr Gan provided to him, presumably by the respondent. Dr Viglione admitted that certain duties outlined in the assessment
“are not in accordance with his capabilities over a prolonged period of time and would almost certainly cause a recurrence of pain.
His selected alternate duties seem to be within his capabilities as outlined. I hope this clarifies the situation. If, indeed, a licensed aircraft maintenance engineer is required to do overhead work with up to 10kgs or use tools in an overhead position then Mr Gama will not be able to fulfil this part of the work. However, he could be usefully employed if he is not required to do work at or above shoulder height.”
The discussion which I have had in the previous paragraph was intended to meet the incompletely articulated complaints of Mr Gama of his treatment prior to his termination and following his work injuries. There are two specific particulars in the statement of claim, the first being that in February 2002 another worker informed the applicant that Hulskamp, Clerke and Vicky Collins were determined to get rid of him. In paragraph 37 of his affidavit Mr Gama says:
“On one such morning in February 2002 I was waiting in Hulskamp’s office to present myself at 8.00a.m. when Leon Smith, another manager, whispered to me words to the effect: “John Clerke, Peter Hulskamp and Vicky Collins are determined to sack you. At that point Hulskamp entered the office and the conversation could not continue.”
Mr Smith gave evidence and denied that the conversation had taken place. I had no reason to impugn the evidence of Mr Smith and would have difficulty in making a finding that such a conversation had taken place. But even if it had it does not really advance Mr Gama’s case. It proves only that Mr Smith said those words not that those words were true. What special knowledge did Mr Smith bring to the statement? We are not told.
The submission of daily work schedules to Clerke for approval and delays in payment issue
I have dealt with this matter at [88] and the remarks made there in connection with racial discrimination apply equally to the allegations of disability discrimination. It is an allegation that has not been established.
The promotions issue and disability discrimination
At paragraph 18 of the amended points of claim the applicant says:
“After January 1998 the respondent discriminated in employment against the applicant on the grounds of the applicant’s disability by denying him access to, or limiting his access to, opportunities for promotion, transfer or training.”
I have already discussed the lack of evidence in relation to Mr Gama’s claims concerning promotions. In order to succeed in this claim it is not enough to say that no promotion was ever offered to him and that from 1998 onwards he suffered from disabilities and require a court to draw an inference joining the two. The court cannot do this without at the very least some specificity about an application made or opportunity missed. There must also be shown a connection between that and the disability itself so that the failure to promote can be said to have been “by reason of” the disability.
The advice from the rehabilitation co-ordinator that she had been told not to assist in finding jobs suitable for Mr Gama’s disability
The person Mr Gama was referring to was a Ms Polverino who gave evidence at the hearing and whose cross examination I have discussed at paragraph 48 of these reasons. Ms Polverino’s role was explained as one responsible for guiding Mr Gama back into his full time previous duties. It was not to find Mr Gama alternative employment within Qantas that would accommodate his disabilities. He might find light duties for a period and she might assist in doing that but my assessment of Mr Gama’s evidence and submissions was that he wanted more from Ms Polverino; he wanted a permanent job outside of the Heavy Maintenance area. The clear evidence from Ms Polverino is that this was not within her job description and considering the whole of the evidence including that of Mr Clerke and Ms Collins I am unable to be satisfied to the necessary standard that the words were actually said.
Relief
Mr Gama seeks relief in the sum of $3,000,000.00 for the eighteen matters set out in paragraph 20 of the Amended Points of Claim. Some of those items relate to matters pre-1998. Understandably, the claim is based upon the supposition that I find in his favour in respect of every allegation. Because I have not done so it is necessary to relate the acts of discrimination which I have found to the medical evidence concerning Mr Gama’s current condition before calculating what damages should be awarded.
The findings which I have made against Qantas are set out in the table below.
| Point of claim | Finding | Relevant Paragraphs |
| Race Discrimination claims | ||
| The “Bombay taxi driver” incident Discussed at [75] of these reasons. | Found that the remark was made by Hulskamp in breach of s.9 of the RDA. Discussed in relation to the “You should be waking up the stairs like a monkey” incident at [76]. | [75] [84] |
| The “You should be walking up the stairs like a monkey” incident Discussed at [76] of these reasons. | Found that the remark was made at a time after 1998 in breach of s.9 of the RDA. | [76] [78] |
| The “Ask Willie” Workers Compensation incident Discussed at [82] of these reasons. | Accepts that there was a meeting in 1998 or more probably early 1999 and Hulskamp made the remarks, because of Mr Gama’s race, in breach of s.9 of the RDA. | [84] |
| Disability discrimination claims | ||
| Hulskamp criticized the applicant for his use of the Workers Compensation system, intimating that his regular use was not legitimate Discussed at [100] of these reasons. | Found Hulskamp did make this remark [82]-[84] in relation to the race discrimination claims. Found that the statement had the effect of treating Mr Gama less favourably than a person without the disability in circumstances that are the same and not materially different. | [100] |
| The “You should be walking up the stairs like a monkey” incident Discussed at [101] of these reasons. | Found that it was made and Hulskamp heard it and did nothing to alleviate the effect of it. | [101] |
| Hulskamp said to meeting of engineers that the applicant “knew how to manipulate the Workers Compensation system” Discussed at [103] of these reasons. | Found that it was made in relation to the race discrimination claims at [84]. Found that it was discriminatory in context of disability discrimination also. | [103] |
It will be seen that the discriminatory behaviour consisted of remarks made either by Mr Hulskamp or in his presence and apparently condoned. There is no causal relationship between any of the remarks and the claims for special damages for loss of earnings arising out of a failure to promote. I would mention at this point that there is a claim in paragraph 20(10) of the Statement of Claim for losses arising out of Ms Collins putting the wrong coding on the computer and certain other complaints relating to Ms Collins. Mr Gama alleges Qantas withheld a number of staff travel benefits, Workers Compensation, superannuation, and termination and settlement of leave as a result of Ms Collins’ actions, or lack thereof. Mr Gama does not depose to these allegations in his affidavit sworn 21 July 2005. Ms Collins gave evidence that she did not, in her role as Manager of People – Heavy Maintenance, have anything to do with Workers Compensation or staff travel benefits. It was put to Ms Collins in evidence by Mr Gama that she had forgotten to process Mr Gama’s paperwork in relation to his termination payments, which the witness denied. Documents tendered by the respondent processed by an employee of Ms Collins indicate that matters in relation to Mr Gama’s termination were processed in accordance with Qantas’ “Employee Clearance Process”, including a form entitled “Payroll Termination Payment Advice”, albeit without the applicant’s declaration and signature.
Mr Gama’s cross examination of Ms Collins was lengthy (T430-444). It set out to show that Ms Collins took his name off the Qantas computer records which resulted in Mr Gama losing certain benefits, including staff travel benefits, for a period of time. Mr Gama sought to corroborate this with a document from someone at Qantas Staff Travel. The letter was the subject of some discussion between myself and Mr Gama. It says merely that Mr Gama’s employment with Qantas was terminated on a particular date and I sought to obtain from him how he was suggesting that it evidenced discrimination.
His Honour: “Then tell me in what way are you now alleging that that was discriminatory?”
Mr Gama:“With using whatever language on the computer, your Honour, from Ms Collins and other section heads like staff travel picking up that information. Like staff travel, they deprived us of using staff travel when we wanted it. So the discrimination comes from−“
His Honour: “But where was the discrimination?”
Mr Gama:“It comes from Ms Collins directing – either doing it herself directly into the computer−”
His Honour: “No, the discrimination, the treating of you less favourably than another person without your disability or without your racial characteristics would have been treated in similar circumstances. Can you please tell me how this letter establishes that fact?”
Mr Gama:“The joy that Ms Collins gets from what she has entered into the computer from other people reading that and treating us.
…
Your Honour, when I’m face to face with so much of racial abuse, anything that happens then around me is taken to be that, it is on racial grounds.”
His Honour: “By you, Mr Gama, but not necessarily by the court. In order for the court to take that view I have to have some proof of that.”
Mr Gama then sought through cross examination to establish discrimination because the witness had worked harder in relation to the Qantas ‘No-Smoking Policy’ than in relation to claimed discriminatory activity concerning his termination. Mr Gama sought to establish a pattern of termination of persons with dark skin. But no admissions were made by the witness and I am unable to draw any inference from her evidence or the cross examination that any actions of hers that may have disadvantaged Mr Gama were actions that were carried out on the grounds of his disability or racial characteristics.
The medical evidence produced by Mr Gama includes a report dated 13 December 2005 from Dr Wendy Orlay to whom Mr Gama was first referred on 22 July 2002 for depression. He was first seen on 9 September 2002. Dr Orlay in her history refers to Mr Gama becoming convinced that Qantas were trying to terminate him and that he was being treated shabbily and unfairly especially since the workplace injury in April 2000. She reports on claims of racist attitudes and discriminatory treatment including some of the remarks which I have found were made:
“Mr Gama became increasingly distressed by Qantas’ treatment of him when he considered he had given devoted service for nearly 20 years with minimal sick leave from 1984 until his accident at work in 1992. Feelings of humiliation and betrayal gave way to depressive symptoms, despair, helplessness, anxiety, panic attacks, intense suicidal thoughts, global insomnia, several kilograms weight loss, extreme fatigue, inability to concentrate and loss of memory and intellectual capacity. His depressive symptoms rendered him unable to work from June 2002.”
On 9 September 2002 and on two subsequent occasions Mr Gama was so severely depressed that Dr Orlay placed him on ‘suicide watch’. She says he has a marked suicidal ideation but that there were no psychotic features in his mental state and his insight and judgment were not grossly impaired. Mr Gama has been placed on medication and Dr Orlay says that the medication and therapy sessions have improved his mood up to a point, but cognitive deficits have not improved significantly. Dr Orlay carried out an investigation as to whether there was an organic cause to his symptoms such as vascular or exposure to aviation fuel. She is of the view that there is not sufficient evidence to establish such a cause. Dr Orlay gives the following comments on her prognosis and comments re causation of illness:
“Mr Gama became ill during a time at which he reported being repeatedly discriminated against on the grounds of his race. This theme dominated every session of his therapy with me for many months and still does to some extent. In my view the nature and timing of his symptoms suggest the symptoms were likely to have been directly triggered by the discriminatory acts.
Mr Gama may turn out to have a neurodegenerative disorder due to aviation fuel exposure or some other cause. There are no risk factors for any other cause of neurodegeneration in Mr Gama e.g. no vascular risk factors, not other toxins like alcohol, no other metabolic diseases. There is an emerging literature supporting the notion of hydrocarbon-related neurobehavioural toxicity with symptoms including anxiety, depression and cognitive deficits like Mr Gama’s in which case it is possible that exposure to aviation fuel was a causative factor. If Mr Gama does turn out to have a neurodegenerative syndrome due to whatever cause then his current clinical picture (anxiety, depression, cognitive impairment) may have evolved even in the absence of racial discrimination.”
Mr Gama was examined by Dr Maxine Walden, a consultant psychiatrist on behalf of Qantas. She has provided a very detailed report admitting that the question of the aetiology of his depression is a complex one. She states that it is possible Mr Gama became depressed in 2000 when he perceived there was some difficulty with regard to his return to duties after surgery to his shoulder. She indicates that it is not clear whether Mr Gama’s perception of being unfairly managed is supported by objective evidence. She then refers to the unfair treatment which is the subject matter of the current proceedings, namely the racial comments and the other allegations concerning promotion and events surrounding his termination. She says
“It is not clear whether Mr Gama’s report of such comments is factually accurate. If it is, I would expect that such comments may be distressing and would cause a person to be angry. It is unlikely that they would lead to long term and severe treatment resistant depression. It seems more likely to me that as Mr Gama has become severely depressed he has searched for a reason as to why he is not managing and has attributed it to racial discrimination but I have not seen any evidence to date that his attribution is based on fact. It is not uncommon for people who are severely depressed to try and make sense of why they are experiencing such difficulties and to misperceive or misattribute causation. I do not mean by this that Mr Gama is lying or fabricating events but rather that his perception has been impaired by his level of depression.”
She also states
“Overall, I would have to conclude that there are some factors with regards to his employment with Qantas between 27 February 1984 and 25 October 2002 that could have been causal in the development of a depressive disorder. This, of course, depends on whether Mr Gama’s perception of being poorly treated by Qantas with regard to the issues of promotion and appropriate work duties after compensation claims is supported by the objective facts. If his perception is not supported then it is more likely that his perception is the result of his depression rather than the cause of it. Ongoing pain may have initially caused some depression and restrictive activity. …If there were acts of discrimination against Mr Gama I do not think that an occasional inappropriate racially insensitive remark would account for his depression. But if there were acts of discrimination regarding his promotion and/or appropriate rehabilitation post-injury this could be a causal factor in his depression.”
Dr Walden was not cross examined. This was a decision made by Ms Gormly. The most favourable reading of that decision for Mr Gama would be that his advisors considered that her report confirmed the views expressed by Dr Orlay that if the discrimination of which Mr Gama complained could be established then it may have well have been causative of his current serious condition. But I have found that Mr Gama has been unable to establish to the necessary standard that the more serious events did occur. In her written submissions, on behalf of Qantas, Ms Eastman states:
“[275] Dr Orlay also gave evidence. In her May 2005 report she said that the Applicant had reported to her his belief that there was racial discrimination and that this was a theme dominating every session of his therapy for many months. She said it still existed to some extent as at May 2005. She says in her view the nature and the timing of his symptoms suggests the symptoms were likely to have been caused by the discriminatory acts.
[276] The Respondent submits that it is a matter of some significance that when Dr Orlay prepared a report dated 11 May 2004 (Exhibit 6), she makes no mention of race discrimination. She refers only to ongoing treatment which is unfair, disrespectful and humiliating but makes no reference of racial comments. It is clear from her report that the comments concerned the Applicant’s claims to various entitlements post termination.”
It seems to me that the medical evidence does support an argument that the found discriminatory events did contribute to Mr Gama’s depressive illness. Dr Walden makes a clear distinction between the causative effect of comments and that of more tangible discriminatory acts such as restricting access to promotion or transfer. I read her opinion as indicating that whilst the comments alone would not account for the extreme seriousness of his condition they would contribute towards it. Dr Orlay suggests that discrimination which includes the remarks may have triggered it. That seems to me to be the only available evidence. I must do the best I can to assign a causative percentage so that I can assess the general damages following from the actions. I do not accept the submissions of Ms Eastman that I should follow Burns v Dye [2002] NSWADT 32 where $1000 was awarded for vilifying graffiti, or Fernandez v State of New South Wales (1999) EOC 92-989 where $2000 was awarded in relation to verbal abuse. The medical evidence is quite clear that Mr Gama’s condition is very serious. He has a severe depressive illness. In Naidu v Group 4 Securitas Pty Limited [2005] EOC 93-408 Adams J awarded general damages against two defendants in the total sum of $350 000.00 for the sequelae of years of racist and sexual abuse against an employee who suffered severe depressive illness as a result. The discriminatory conduct that I have found proved in this case would not be as severe as that experienced by Mr Naidu. On the other hand, the medical evidence discussed by his Honour between [234] and [255] reveals a psychiatric condition not significantly more serious than that currently suffered by Mr Gama. The damages were subject to adjustment because of the provisions of the New South Wales Workers Compensation Act 1987. In Locke v Bova [2004] NSWSC 534 the plaintiff was traumatised when his wife suffered serious injuries due to medical neglect. He suffered major depression, severe and chronic post traumatic stress disorder that was retriggered upon his return to work as a doctor. At [118] the learned trial Judge said:
“The profound effect of these disabilities upon Dr Locke in the past and a likely effect in the future call in my view for significant general damages. Although Dr Locke is able bodied he is a different man. His life including his relationship with his wife and family is a different life without the promise that it once held. I believe the appropriate sum is $225,000.00.”
In McKenna v The State of Victoria [1998] VADT 83 the sum of $125,000.00 was awarded for discrimination in employment where the applicant suffered extreme depression, extreme stress and extreme anxiety culminating in a complete breakdown and suicide attempts. The award of $125,000.00 was not altered by the Supreme Court in State of Victoria and Ors v McKenna [1999] VSC 310.
In the 2002 edition of Luntz Assessment of Damages for Personal Injury and Death (4th Ed) the learned author says at [3.1.5]:
“…although damages must be ‘proportioned to the injury’, an award can only be set aside on appeal if it is ‘out of proportion to the circumstances of the case’. Since no two cases are truly comparable, the test is by ‘the general standards prevailing in the community.’ [27] It is therefore erroneous to seek to derive a norm or standard from a group of judgments of the High Court reviewing awards of damages on appeal, or from the awards of any other court. Accordingly, reference to other individual cases is prohibited [28]. Although there has been some indication that the High Court might reconsider this attitude [29], lower courts continue to regard themselves as bound by the decisions. Nevertheless they often express regret at having to do so, or distinguish it, or simply ignore it, and do make reference to comparable cases in order to ascertain the general level of damages for the type of injury.”
I have endeavoured to make my decision upon the quantum of damages for Mr Gama independently but informed and hopefully reflecting the general standards prevailing in the community. In making the assessment I have considered what might properly be awarded for the worst possible case of injury and attempted to position Mr Gama’s condition along the line of that graph curve. I have concluded that whatever figure I might alight upon for the proper measure of damage for all of his injuries I must make a significant reduction to reflect the fact he has been unable to prove the more serious causative events. I would take a figure somewhat lower than Justice Adams’ figure in Naidu as the appropriate figure to be awarded on an unrestricted basis for damage of the type suffered by Mr Gama because the figure should reflect the fact that Mr Gama has only been able to persuade me of the existence of a general attitude of racial intolerance and a few unpleasant incidents. This should be compared with the proved long term abuse of Mr Naidu. To my mind this element reflects the pain and suffering element of a traditional injury as opposed to the sequelae of the injury being the effects that the injury leaves with the injured person. I have taken a figure of 20% as appropriate for the contribution to his condition of those discriminatory actions that I have found to have been proved. This results in an award to Mr Gama of $40,000.00.
There is little additional assistance provided to the court because of the nature of most causes of such damage being subject to statutory limitations, e.g. Motor Vehicle Act (NSW) 1988. This court has not been so limited in consideration of damages for breaches of the RDA or the DDA. I appreciate that in Commonwealth v Evans (2004) ALD 402 Branson J reconsidered an award of $25,000.00 for an applicant who had suffered temporary clinical depression to $12,000.00 but I do not read her Honour’s reasons as indicating that the value of an injury is to be discounted because the causative factor was a breach of a Commonwealth anti-discrimination act. There is certainly nothing in any of those acts indicating that this was the intention of the Parliament. It has been long established that damages for injuries suffered as a result of discriminatory conduct is to be assessed on a tortious basis: Jamal v Secretary, Department of Health & Anor (1986) EOC 92-162; Hall & Ors v Sheiban Pty Ltd & Ors (1989) EOC 92-250; Lynton v Maugeri & Anor (1995) EOC 92-754. That is the way I have looked at it, I hope I have made this clear.
Mr Gama makes a claim for loss of opportunity in relation to promotions. That claim has not been made out. There is a claim for loss of enjoyment of family and other social activities and additional stress placed upon his marriage, in respect of which Mrs Gama gave evidence by way of affidavit. I have included that claim in the general damages claim which I have previously assessed. There is then a claim for past and future medical expenses. Mr Gama made 45 visits to Dr Orlay at $150 by the time of hearing and spent $105 for travel for every appointment. Applying the same 20% proportion I would award a figure of $1,350.00 for the cost of the doctor’s appointments and $945.00 for the cost of travel. There is a claim for medication in the sum of $49.50 per week since December 2000 which was when Mr Gama was first given tablets for depression. Up to the time of the commencement of the hearing this was $14,157.00 and the 20% figure would be $2,831.00.
There are claims for future medical expenses. Dr Orlay opines that Mr Gama will need appointments for the foreseeable future and there is a claim for 582 visits at $150 a time and the same number of trips at $105 a time. These figures are $87,360.00 and $61,152.00 respectively. But they represent visits for the next 22.4 years. I do not think the ‘forseeable future’ means from now until the end of Mr Gama’s life expectancy. I note that Mr Naidu whose case was more serious only visited his psychiatrist once every 3 weeks. I am prepared to make an award for Mr Gama on the basis of 15 visits per year for 7 years, again on the 20% basis. This comes to a figure of $3,150.00. The costs of the trips would be $2,205.00 on the same basis. As for the claim for continuing medication which I would also extend for 7 years and not the 22.4 years claimed, on the 20% basis this comes to $3,603.00.
Mr Gama is entitled to interest on his damages. In respect of the general damages interest should commence on the date his employment with Qantas was terminated being 25 October 2002. Interest calculated at the rate of 9% under Schedule J of the Rules of the Supreme Court of New South Wales 1970 in accordance with Federal Court practice: as per Hely in Scoway Pty Ltd v Faxon Pty Ltd [204] FCA 249 at [20] – [21], is $14,853.70. Mr Gama commenced his treatment from Dr Orlay on 22 July 2002. It is difficult to calculate interest in relation to this claim because I shall assume that Mr Gama was entitled at least to some rebate from Medicare for attendances on a qualified psychiatrist. I would propose to award a total sum of $250.00. With regard to the interest on the medication this again would have been subject to some Medicare rebate and I would award $100.00. I would award $200.00 in respect of interest on the cost of travel. The total sum to be awarded to Mr Gama is therefore $71,692.70.
Mr Gama has asked for an apology. I have made it plain in previous decisions (Rachael Evans v National Crime Authority [2003] FMCA 375 at [115]; San v Dirluck [2005] FMCA 750 at [49]; Phillips v Mandic [2005] FMCA 330 at [16]) that I believe that an apology is something which should come from the heart. I do not think it is appropriate for a court to order a person to apologise because such an apology may have little value. However there is value in an exhortation from the court that those responsible at Qantas and Mr Hulskamp read these reasons carefully, appreciate the very unfortunate results of their actions and take it upon themselves to write appropriately to Mr Gama.
The respondent asks that whatever finding I may make it be heard as to costs. This is appropriate and I will set down a date for such a hearing upon application to my associate.
This has not been an easy case to hear or to decide. It is appropriate that the court should make mention of the exemplary way in which the case was conducted by Ms Eastman on behalf of the respondent and by Ms Gormly, when she was in attendance, on behalf of Mr Gama. The court is also grateful for the efforts made by Mr Gama to present his case when he was representing himself in a dignified and restrained manner. It was clear that he was under considerable pressure, but he was at all times courteous and helpful.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
- AGLC
- Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
- Case
- [2006] FMCA 1767
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether it could be inferred that the alleged racially discriminatory conduct occurred, and if the respondent could be held vicariously liable for breaches of the Race Discrimination Act 1975 and the Disability Discrimination Act 1992. The court needed to determine if the respondent failed to take reasonable precautions or exercise due diligence to prevent the discriminatory conduct, and if management employees were aware of and participated in the discriminatory behaviour. Moreover, the court had to assess the damages, including psychiatric injury and medical expenses, and consider whether an apology should be ordered as part of the court's final orders.
The court found that Mr Gama's claims of race and disability discrimination were partially substantiated. It was determined that the discriminatory events contributed to Mr Gama's depressive illness, and the medical assessment supported this claim. The court awarded Mr Gama damages for breach of the Race Discrimination Act 1975 and the Disability Discrimination Act 1992, totalling $71,692.70 including interest. The court also reserved the matter of costs, pending further submissions. The court did not order an apology from the respondent, as it was not deemed necessary under the circumstances.
Orders
Orders of the court
1.
The Respondent to pay the applicant $71 692.70 as damages including interest for breach of s.9 of the Racial Discrimination Act 1975 and s.15(2)(d) of the Disability Discrimination Act 1992.
2.
Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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