Gould v The Director-General, New South Wales, on Behalf of Ambulance Service, New South Wales
[2011] NSWADT 35
•23 February 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Gould v The Director-General, New South Wales, On Behalf of Ambulance Service, New South Wales [2011] NSWADT 35 Hearing dates: 14 September 2010 Decision date: 23 February 2011 Jurisdiction: Equal Opportunity Division Before: C Huntsman, Judicial Member
N Hiffernan, Non -Judicial Member
Dr B Field, Non -Judicial MemberDecision: The application is dismissed.
Catchwords: Harassment and victimisation Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44; Dutt v Central Coast Area Health Service [2002] NSWADT 133
Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40
Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24Category: Principal judgment Parties: Lorraine Gould (Applicant)
The Director-General, New South Wales, On Behalf of Ambulance Service, New South Wales (Respondent)Representation: Everett Paull Solicitors & Conveyancers (Applicant)
Lander & Rogers(Respondent)
File Number(s): 081102
REASONS FOR DECISION
Introduction
On 16 June 2008, Ms Lorraine Gould lodged a complaint of sexual discrimination and victimisation with the Anti-Discrimination Board. Ms Gould alleged that she was discriminated against and harassed by senior officers and male colleagues at Wellington ambulance station. She also alleged that she was victimised because she complained to her employer. The President of the Anti-Discrimination Board found that some of the incidents in Ms Gould's complaint occurred more than 12 months before she lodged a complaint with the Board. On 23 June 2008, the delegate of the President made a decision to decline events in the complaint that occurred prior to 16 June 2007. The President's report indicates that the Anti-Discrimination Board characterised the complaint as one of sexual discrimination in breach of sections 24 and 25 of the Anti-Discrimination Act 1977 (the Act) and victimisation in breach of section 50 of the Act. The President's report also refers to s53 and 52 (vicarious liability, and aiding and abetting). On 24 September 2008 Ms Gould's legal representative, Ms Everett, requested the complaint be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal) for a hearing.
The Applicant's case
The Applicant's case consisted of the following written evidence: the Applicant's Points of Claim (a two page document) and annexures A to J to that document. These annexures consisted of : Annexure A - a letter dated 27 March 2008 from the Applicant to Professional Standards and Conduct Unit with pages numbered up to page 21 attached; Annexure B - a letter dated 10 June 2008 to the President of the Anti-Discrimination Board, a letter of some 15 pages; Annexure C - a letter of 20 June 2008 to the Director, General-Purpose Standing Committee Number Two, Parliament House; Annexure D -a document dated 28 November 2008 authored by Lorraine Gould; Annexure E -Pro Active Resolutions Conference Agreement; Annexure E - report of Dr Pussell or 29 May 2008; Annexure G report of Dr Kwa of 13 June 2008; Annexure H -report of Dr Pussell of 29 May 2008; Annexure I- report of Dr Kwa of 7 August 2008; Annexure J - report of Dr Kwa of 19 August 2008. In the document -"Applicant's Points of Claim", annexures A to D are referred to as "complaints" made by Ms Gould of various dates, being the dates of the relevant correspondence by Ms Gould. The content of this material is further discussed below.
The Applicant also submitted a written statement by Rodney Althofer dated 23 March 2010. This was a statement which was prepared for GIO Insurance as is indicated by paragraph 2 of the statement. It was indicated to the Tribunal by the legal representatives, that the Respondent did not require the attendance of Mr Althofer for cross-examination. The Applicant's legal representative, Ms Everett, indicated at the commencement of the hearing that the Applicant would not be giving oral evidence in the proceedings, nor would she be present in the hearing room, due to distress. There was no indication by the Respondent that the Applicant was required for cross-examination. The Respondent objected to certain evidence of the Applicant being admitted into evidence in the proceedings, as discussed below.
The Respondent's case
The Respondent's case consisted of a written statement and oral evidence by Mr Beazley. Mr Beazley is employed by the ambulance service in the Role of Divisional Manager, Western Division, New South Wales. Mr Beazley refers in his statement to a report by Mr Clarke, Barrister, who was appointed to conduct a fact-finding investigation into the allegations set out in Ms Gould's complaint to the President of the Anti-Discrimination Board. The Respondent's case also consisted of legal submissions as detailed further below.
The objections by Respondent to Applicant's evidence
The legal representative for the Respondent, Mr Sullivan, objected to the submission into evidence of the Applicant's document - Applicant's Points of Claim (with annexures). The basis of the objection was that the Applicant had not provided sufficient particulars of her claim that the Respondent had breached the Anti-Discrimination Act (the Act), and that the Applicant had failed to comply with a direction made by the Tribunal at a case conference on 9 December 2009 to file and serve a statement of evidence and points of claim. The Respondent submitted that the material was objected to, if the basis of submission of the material was to prove the facts asserted in the material. The Respondent submitted that when Mr Beazley's statement was filed on 18 May 2010 on behalf of the Respondent, this put the Applicant on notice of the Respondent's view that the Applicant had not provided evidence to support her claim. The Respondent objects to the material being filed also on the basis that the Respondent is unable to understand from the material filed by the Applicant, the precise matters alleged by the Applicant. If the material is to be accepted into evidence it should be accepted only on the basis that the complaints have been made by the Applicant but not to prove the matters asserted in her material.
The Applicant's legal representative indicated that it was her fault as legal representative that written material was not submitted in the required form, and should not prejudice her client's case. The Applicant's legal representative states that the Respondent has been on notice of the matters in the Applicant's Points of Claim from December 2008. She conceded that she had not attended the last case conference at the Tribunal stating she was unable to do so because she was in court elsewhere that day. She noted she was unfamiliar with the jurisdiction and was acting on a pro bono basis.
The Tribunal adjourned to consider the Respondent's objection to the Applicant's evidence. On resuming the hearing the Tribunal indicated that it would allow the evidence to be submitted and the parties could address on the weight which should be given by the Tribunal to the evidence. It is noted that in discussing the admissibility of the evidence the Tribunal sought to ascertain from the Applicant's legal representative whether the Applicant intended to give oral evidence in the proceedings. Ms Everett indicated that her client would not be giving any oral evidence nor would she be present in the hearing room due to her distress. She indicated that her client could be put in the witness box for the purpose of adopting the written material filed in December 2008 but would not give further evidence nor be available for cross-examination. When giving its ruling on admitting the document - the Applicant's Points of Claim with annexures - the Tribunal noted that it did not require these document to be formally adopted by the Applicant in the witness box, noting that she was not to be available for cross examination.
The reasons that the Tribunal decided to admit the document into evidence included that, in considering the issue of fairness, the Respondent had been on notice of the material in the document from December 2008. However, the Tribunal also noted that the Respondent anticipated further clarification of the Applicant's claim would be forthcoming given the Tribunal's direction for filing of further material by the Applicant, with which the Applicant did not comply. The Tribunal noted the Tribunal's concern that the Respondent had not had the benefit of the Applicant clearly setting out the basis of her application by providing a clear account of her own evidence in a statement form. However, the Tribunal also noted the Respondent's contention that the material filed by the Applicant would not be capable of establishing her case, and as such it was difficult to see how there could be prejudice to the Respondent, if the Respondent's view of the Applicant's evidence was correct. The Tribunal considered that the matter was listed for hearing and that both parties were aware of this, the Applicant's document had been filed since December 2008, the Applicant and the Respondent had the benefit of legal advice and representation, and noting that the Tribunal is not bound by the rules of evidence in relation to admission of documentation, the Tribunal considered in all the circumstances of this particular case that the document should be admitted. In giving its ruling the Tribunal noted that the weight to be given to the document would be a matter for the Tribunal to determine and in respect of which the parties could make submissions.
This is not a matter where the Applicant is self-represented and is without legal representation, this is a matter where the Applicant is legally represented. It also appears that she has had the same legal representative since the time that the complaint was made to the Anti-Discrimination Board as Ms Everett is recorded as legal representative on the President's report. The Tribunal would assume, where an Applicant is legally represented, that the Applicant has had the benefit of legal advice and assistance in preparation and conduct of the case. Ms Everett stated that her client's position should not be compromised by Ms Everett's failures as her legal representative, namely the failure to file a witness statement in a proper form. Ms Everett referred to the fact that she had taken the case pro bono and that she was unfamiliar with the jurisdiction. In the Tribunal's view the fact that a legal representative is acting on a pro bono basis should not affect the quality of a lawyer's preparation and presentation of a case, and if a legal representative is unfamiliar with a jurisdiction the representative, is still required to research and prepare the case.
The Tribunal noted that in the hearing of the application, the Applicant was legally represented, and so had the benefit of legal advice and representation in presentation of evidence to the Tribunal and conduct of the hearing.
Discussion of Evidence and the Tribunal's Findings
It is noted that this case involved the Applicant submitting evidence, in written form, about her experiences of employment with the Respondent, and this was the evidence presented in support of her application. It is further noted that the Respondent chose to present very little evidence in response to the Applicant's evidence, the Respondent being of the view that the Applicant's evidence did not disclose a breach of the Act by the Respondent. Accordingly, in assessing the evidence overall in this matter, because little evidence was presented by the Respondent to contradict the Applicant's account, the Tribunal has focused on whether, on the evidence presented, the Applicant has proved her case, to the requisite standard of proof, being the balance of probabilities. This has involved a consideration of relevant legal principles and the Applicant's evidence.
Discussion of the Applicant's evidence and the Tribunal's findings
The Applicant's case is that the Respondent has breached provisions of the Anti-Discrimination Act 1977 (the Act) - such breaches occurring during her employment. In summary, the Applicant states that she has been discriminated against on the ground of her sex, by being bullied and harassed in the workplace, and by the failure of the Respondent to respond to her complaints about harassment/bullying, and by the Respondent's failure to respond to her complaints made to her employer during her employment. She states that the failure to respond to her complaints, by her employer, was discrimination against her as a woman and therefore was sexual discrimination. She states she suffered victimisation on this basis. She states that if she was a male her complaints would have been responded to, and that she would not have suffered in her employment in the way that she did if her complaints had been acted upon by her employer at the time her complaints were made.
Specifically, in the document "Applicant's Points of Claim" the Applicant states: "during the periods of her employment the Applicant was frequently subjected to verbal abuse, threats, physical intimidation, sexual discrimination, physical discrimination causing physical injury to her right wrist, inaction by senior staff following complaints of abuse, segregation, isolation, discrimination and victimisation in the workplace. Annexed hereto and marked with the relevant letters at the following annexures [annexures A to J]". The points of claim also notes, at paragraph. 1, that the Applicant has been employed by the Respondent as an ambulance officer since 1995 and remains employed by the Respondent. As noted above, the Applicant was legally represented at the hearing. The Applicant's legal representative made clear that the Applicant was relying on material about incidences occurring within the period of the complaint, and conceded that a lot of the material filed referred to incidences occurring in periods outside the period of the complaint. The Applicant's legal representative indicated this was relevant background material. There was no application to amend the complaint.
As Applicant Ms Gould bears the onus of proof - she is required to establish on the evidence, on the balance of probabilities, that the Respondent has breached the Act in the way that the Applicant contends. The Applicant's evidence consisted of written material filed, and did not include evidence in the form of a personal witness statement or oral evidence. Having determined that the document entitled "Applicant's Points of Claim" and the annexures to that document, be admitted into evidence, the Tribunal was required to discern from that material whether the material discloses any breaches of the Act. In particular, the Applicant's complaint as referred by the President of the Anti-Discrimination Board is one of sexual discrimination and victimisation. The Respondent essentially did not submit evidence in response to much of the detail submitted by the Applicant, the Respondent's stated view was that the Applicant's evidence did not disclose a breach of the Act by the Respondent. The Tribunal has therefore considered the Applicant's evidence carefully to determine whether she has established, on the evidence, that the Respondent has contravened the provisions of the Act. The Tribunal was not assisted by the way in which the Applicant's case was presented: there was no submission/argument presented as to how the Applicant's evidence disclosed a breach of the Act by the Respondent.
In the written material submitted by the Applicant and annexed to the Applicant's Points of Claim (Annexures A to D) the Applicant provides detail of a large number of incidents on various dates. The Applicant's legal representative focused on incidents which occurred during the period from 16 June 2007 to 16 June 2008. The Tribunal has carefully considered all of the material provided by Ms Gould - all of that material will not be summarised in these written reasons for decision, reference may be had to be documents on the Tribunal file. In summary, in those documents the Applicant alleges she was subjected to intimidation, harassment and bullying whilst she worked for the Respondent. She also states that she was treated differenty, because she was a woman, in the way her complaints were investigated and responded to . She further states that she was victimised because of having complained. The Tribunal has carefully considered Ms Gould's evidence.
In Annexure A - a letter dated 27 March 2008 from the Applicant to Professional Standards and Conduct Unit (with pages numbered up to page 21 attached) - Ms Gould details a number of events. In particular she attaches a letter addressed to Mr Stimson of 11 January 2008. In that letter she said she had been pushed around, bullied, harassed and intimidated at Wellington station since the removal of station manager Althofer. She states her belief that due to her support for station master Althofer she has become a target. She goes on to detail occurrences which she sees as indicating she is a target. She says she has been prepared to turn a blind eye to officers stealing equipment from Wellington Hospital, to signing off before they are back in town and not abiding by the station mobilisation plan and delaying response times. She states
"I don't believe that I should be a victim for carrying out my duty in accordance to the Ambulance Service of NSW's SOPS and Policies. I understand why there is such a high suicide rate in the service when little or no action is taken on women in the service they get treated in such a way."
The Applicant states that she received a letter in response to her letter of 11 in January 2008, dated 21 January 2008, indicating that discussions would be held to progress the issues. She states that due to staff relocations the discussions did not continue after some preliminary discussions which she says were recorded by the station master on his computer. She further details (attachment 1C to Annexure A) her concern when she was approached by an officer questioning her about a complaint which had been made about him. Contained in Annexure A is a copy of a document said to be written by Kate Neill who was a station manager at Wellington for a period of time. In this document Ms Neill expresses her view that she had seen Ms Gould ignored by other staff. She details disappointment with clarification of officer Ibbott's status (officer Ibott is reported to be a younger female officer). She states
" they constantly derided their previous Station Manager, and indicated that the only officer who cared about his outcome was officer Gould. I believe that her unfailing support for officer Althofer was one of the reasons for the appalling treatment of her. One of them stated to me that if officer Althofer was returned to the station, four officers would refuse to come to work." She further stated "I felt concerned that in the face of several officers colluding to bring about the demise of officer Althofer, and now obviously targeting officer Gould, I felt intimidated and didn't want to find myself in the same predicament, especially as I was originally only going to be there for three weeks."
There is no statement in the complaint letter of 11 January 2008 (attachment 1.a to Annexure A ) that she was discriminated against for reason of her sex - rather she states that it was because of her support for Mr Althofer. She clearly states in the first paragraph of the letter of 11 January 2008: "I have been pushed around, bullied, harassed and intimidated on Wellington station since the removal the station master health offer." She also states that she has had to drop her standards to stay on the good side of other officers of the ambulance service, and makes allegations of poor conduct (for example, theft) by other officers. She does mention in this letter treatment of women in a general sense, but does not provide detail or complain about any specific instance, or act or action by the Respondent or the Respondent's employees, where she suffered mistreatment because she was a woman; nor does Ms Neill indicate that a reason for any mistreatment was due to Ms Gould being a woman, rather she indicates it was due to Ms Gould's support of Mr Althofer. In relation to her specific complaint (attachment 1C to Annexure A) this relates to her complaint that another officer seemed to know that she had made a complaint about him - however, no detail is presented about the actual complaint made by Ms Gould about that officer - there is no evidence to indicate that the complaint about the other officer was a complaint involving sexual discrimination or harassment, and no evidence to support a conclusion that the complaint about the other officer was a complaint that that other officer had acted toward Ms Gould in a way which would constitute sexual discrimination, sexual harassment or victimisation. In relation to another specific complaint by Ms Gould, namely that she was not advised of a meeting in February 2008, and that there was a differential application of a rule to not go off station on one's own, it was not asserted that the rule was applied differentially to Ms Gould because she was a woman.
In document Annexure A Ms Gould details a number of events which she entitles "complaint 1" through to "complaint 17". The Tribunal has carefully considered each of the complaints detailed by Ms Gould. Those complaints referred to various behaviours and events which Ms Gould described as either: bullying, harassment; pressure to not comply with the ambulance service rules; Ms Gould concerns about unprofessional conduct by other ambulance officers; breaches of ambulance service policy by other officers; abusive behaviour by other officers; officers going off station in breach of policies/procedures; allegations of stealing from the hospital or the New South Wales Health Department; detail about a conversation with a supervisor in relation to the planned formal presentation to Ms Gould of a good conduct medal (complaint 16); an allegation of a fellow officer giving the wrong medication to a patient (complaint 17). In relation to all of the complaints 1 through to 17, no complaint/assertion is made by Ms Gould that any of the conduct which she complains of occurred because of her sex, or constituted discrimination/harassment on the basis of sex - Ms Gould gives details of abuse which she says she suffered, including exclusion from social activities and refers throughout to policies of the Respondent, as her employer, in place to prevent bullying and harassment. However Ms Gould, in the particulars of the complaints, provides no evidence to indicate that the abuse was sexual in nature, or directed at her as a woman. In pages 19 through to 21 of the document 'Annexure A' Ms Gould gives details of her belief that she has been discriminated against in her employment on the basis of her sex. It is important to note that these are generalised claims and do not detail specific incidences, or acts or actions by the Respondent or the employees of the Respondent. Ms Gould details her belief that if she was a male officer she would not have been treated with such disregard and contempt, and would not have been bullied, intimidated and harassed. Ms Gould further states that if she were a male, management may have taken more notice of the complaint of bullying which she made; she states if she were a younger female she would not have been harassed, bullied, intimidated and isolated by the other staff on the station. Ms Gould states she is of the belief that if she did not support station master Althofer she would not have been discriminated against in the manner that she was. She states she is of the belief that management has not acted on her complaints in line with occupational health and safety legislation in New South Wales. She states she is concerned that management did not implement any risk controls which they should have if they followed the guidelines for prevention and management of workplace bullying. She notes the employer's policy is one of commitment to providing a workplace free from discrimination and harassment of any kind. She further states that her grievance was not treated seriously, fairly and impartially in terms of the grievance resolution procedure. She states that she believes she was discriminated against because of her age, gender and disability.
In document Annexure B, which is a letter of 10 June 2008 to the President of the Anti-Discrimination Board, Ms Gould details relevant background. In the letter she asserts there is a boys' club culture within the ambulance service, which she experienced since she joined in 1995. She also provides considerable detail about the role of the union, stating that the majority of the boys club are in the union. In this document she detailed problems which she had with the union. Ms Gould states that station master Althofer also had some problems with one of the union delegates. She refers to being called a " F---ing slut" but gives no date that this behaviour occurred, and does not assert that has occurred within the period of the complaint. Ms Gould goes on to state that she would like to lodge a complaint in respect of the past 12 months, against the ambulance service of New South Wales, and notably staff on Wellington station and the managers Mr Steyn Street and Mr Dive who did not take action against staff sexual discrimination, bullying, harassment, intimidation and isolation which has left her with a workplace injury. She states that on 9 October 2007 due to manipulation of staff and Mr Edwards of the Union, Mr Althofer was stood down from his position. She asserts complaints had been put in against Mr Althofer by strong union members and other staff. Ms Gould details when she was advised that Mr Althofer was stood down she was very upset and fearful for her safety and indicated this to district officer Dive. She details her view that she believed she may as well resign at that time as she would be given a hard time by other male staff on the station because they knew of her support for Station Master Althofer and because she is hated by the union, mainly Mr Edwards. She further states that, as a female, she has been a victim of bullying and harassment for years, but does not provide details of specific incidences of harassment which she suffered because she is female.
She details her belief that male officers were tightening up the taps on the oxygen bottles and taps in the kitchen so tightly, so that she was unable to open them, and that she raised this at staff meetings as an issue, and that she was hurting her wrist by straining to turn these. She states that after Mr Althofer was stood down it became worse. In document Annexure B Ms Gould details the events of 24 October 2007, 17 September 2007, 24 November 2007, 27 November 2007, 21 December 2007, 23 December 2007, 28 December 2007, 30 December 2007, 5 January 2008, 7 January 2008, 9 February 2008, 11 January 2008, 13 January 2008, 20 January 2008, 13 February 2008, 17 February 2008, 27 February 2008, 26 February 2008, 29 February 2008, 1 March 2008, 3 March 2008, and other dates including 4, 8, 9, 11, 18, 19, 20, 23, 26 March 2008; and 11, 12, 14, 15, 16, 17, 18, 21, 22, 27 April 2008; and 10, 11, 14, 19, and 20 May 2008. All of those events reported by Ms Gould included details of conversations with other officers or behaviour by other officers which Ms Gould found objectionable: some events alleged malpractice by other ambulance officers (27 February 2008), and incidents such as a dispute with other officers about whether Ms Gould could give IV medication (5 January 2008) and a dispute with the behaviour of male officers at the scene of a cardiac arrest on 24 November 2007. Ms Gould also gives examples of being ignored by other officers. In none of those events detailed by Ms Gould is the cause of the treatment complained of by Ms Gould stated to be her sex, or her status as a woman, with the exception of the incident detailed on 24 November 2007 where she states male officers took over the scene even though the station master, who was female, should have been in charge of the scene -she states that both herself and the station master were senior to the two male officers and she alleges that the male officers' behaviour was inappropriate in a volatile situation. She details her view that on 26 February 2008 she was criticised for going off station when she needed to go to Wellington hospital because she was having chest pains, asserting she was misjudged, however she was ordered back into a hostile environment. She detailed occasions when she felt she was ignored or isolated by other officers in the workplace. She further details her belief that her wrist was injured due to being strained by having to turn the oxygen taps on which were done up too tightly. She states she has been a victim of sexual discrimination because management let things go on for so long. She states when a male officer puts in a complaint she sees there is action taken, and it is taken quickly. She believes her complaints are seen as unimportant, and her life of little concern to management. She states her belief that Mr Steyn Street had problems with women in the ambulance service and likes to keep women in their place. She states it is an unsafe working environment for women, but provides no details or evidence to support this assertion.
Document Annexure C is a letter addressed to Parliament House Standing Committee and is dated 20 June 2008. In this document Ms Gould details the history of her work with the ambulance service and that she witnessed bullying at Dubbo Station. She witnessed verbal abuse. She refers to the boys club, the role of the union and in particular Mr Edwards, the mistreatment of Station Manager Althofer, and other complaints of verbal abuse. There are no dates put to any of these complaints, with the exception that she refers to attaching a complaint which she forwarded to P CSU on 28 March 2008 (this appears to be a reference to the document submitted in these proceedings as Annexure A).. She states that her complaint does not get the same response as the complaint by a male and this is because she is a woman and a victim because of her gender. She says the suicide rate is high in the ambulance service because of these issues, but provides no evidence in support of the statement, other than her assertion which is unsubstantiated.
Document Annexure D which is dated 28 November 2008 detailed events on a number of dates from 22 July 2008 onwards. These events are outside the period of the complaint- a number of them deal with Ms Gould's experience of mediation in the workplace in particular with Proactive Resolutions. All of the matters raised by Ms Gould were considered by the Tribunal in relation to understanding Ms Gould's case, particularly given her contention that there was a culture at the ambulance service which was relevant to her claims. The document, Annexure D, is a conference agreement with Proactive Resolutions relating to August 2008; and annexures F, G, H and I and J are medical reports which are relevant to Ms Gould's claim of a workplace injury.
In her complaint to the Anti-Discrimination Board the Applicant states she has been a victim of sexual discrimination because management let things go on for so long. She states when a male officer puts in a complaint she sees there is action taken, and it is taken quickly. She believes her complaints are seen as unimportant, and her life of little concern to management. She states her belief that Mr Steyn Street had problems with women in the ambulance service and likes to keep women in their place. She states it is an unsafe working environment for women. She states her beliefs in relation to her workplace experiences, but does not provide evidence to demonstrate that a real or genuine reason that the Respondent failed to respond to her complaints was her status as a woman. The Applicant's case (on her own documents and also the statement of Mr Althofer) is that she made numerous complaints over the years (Mr Althofer states some 30 or 40), although there is no evidence that she made a complaint that she suffered specific acts of discrimination because she was a woman.
The Applicant also provided a statement by Mr Althofer. This was a statement prepared for another purpose, for use in insurance proceedings. The statement is lengthy and provides evidence about a number of issues, and also refers to incidents occurring outside the period of the complaint. The statement of Mr Althofer is consistent with the Applicant's evidence that she supported Mr Althofer is in his position as Station Master. Mr Althofer details his view of the Applicant's employment with the ambulance service. He describes her experiences in 1997 as reported by the Applicant to him. He refers to an issue about the amount of overtime being worked and the Applicant's conflict with Mr Edwards of the union over this issue. Mr Althofer expresses his views in relation to various officers, who he thought did not do their job properly, and expresses his view that the Applicant was good at her job. He says she has high standards and was popular in the town. He notes that in October 2007 complaints were made against him, including ones which had been previously dealt with but were brought up again. Mr Althofer thought the investigator was biased. He says that the Applicant helped him reply to the allegations and he was off work for a while. He notes that during this period the Applicant reported to him she was getting a hard time and she told him about it. He noted " she does push things. If she doesn't get an answer when she thinks she should she pushes. Ultimately it went to the Anti-Discrimination Board and to the Parliamentary inquiry." Mr Althofer notes that eventually a decision was made for him to come back to Wellington. He says he had all these restrictions and notes that the Applicant was on workers compensation for a wrist injury which she felt was from people over tightening oxygen bottles. He noted he had raised this issue at a staff meeting.
Mr Althofer details events outside the period of the complaint: for example he describes how an interim manager was put in place from August 2008 until February 2009, and that he did not think he was a good manager and thought he was rude. He noted the Applicant was having trouble with this manager and he advised the Applicant to watch him. Mr Althofer expresses his opinion that Mr Gavan is sexist. He details some sexist comments which he said he overheard Mr Gavan making - which were made in the absence of the Applicant. Mr Althofer gives other evidence about his perception of events occurring after the period of the complaint: he notes that the Applicant came back to work after a wrist injury, Mr Gavin departed, and Mr Flannigan came as team leader. Mr Althofer says the Applicant's complaints didn't seem to go anywhere and culminated in a big investigation by a barrister in Sydney and Mr Althofer had not heard the result of that yet. He further details a complaint against himself where it was alleged that he followed a person around town. He denies that he did this. Mr Althofer also details other issues in paragraphs 25, 26, 27 of his statement and no dates are provided, the issues include an illness of the Applicant's mother, the Applicant's return to work one day when she couldn't get an appointment until the next day, and her interactions with managers causing her to have to walk home in the rain, and Mr Althofer's view that a certain officer was just a bully. Mr Althofer also claims that the Applicant was asked if she wrote a letter to someone's wife claiming he was having an affair, this was an anonymous letter, and that the Applicant denied doing this.
Mr Althofer expresses his view that work has been stressful for the Applicant and he has seen her "go downhill." He also gave some evidence in paragraph 31 about third persons, being a son of the Applicant and the son's fiance, overhearing a conversation between employees of Proactive Resolutions talking about the Applicant and Mr Althofer. This evidence refers to incidents after the period of the complaint, and is also hearsay evidence which was not heard by the witness, Mr Althofer, and so attracts less weight in evidentiary terms, particularly having regard to the fact that it relates to events occurring outside the period of the complaint. He states that the Applicant put in a complaint and as far as they knew nothing had been done. Mr Althofer states there have been about 30 or 40 complaints that the Applicant has put in and nothing has been done. Mr Althofer provides no detail as to what these complaints were about. He believes all of these things have added up and resulted in the Applicant going off work. He says the same thing has happened to him.
Mr Althofer does not give any detail that the Applicant at any time made a complaint alleging sexual harassment or sexual discrimination. He does however indicate that she made complaints about the conduct and work practices of other ambulance officers. In the Tribunal's view the statement of Mr Althofer does not assist the Applicant's case: Mr Althofer does not give direct evidence of incidents whereby the Respondent has sexually discriminated against the Applicant, and furthermore, does not give such evidence of such incidences in the period of the complaint. Mr Althofer also does not provide evidence upon which the Tribunal could base a finding that the Applicant was victimised or suffered detriment for making a complaint of sexual discrimination by the Respondent, or for taking action as set out in section 50 (1) of the Act.
The Applicant's legal representative made submissions. She noted that the Applicant's material referred to events occurring outside the period of the complaint and stated that the Applicant relied specifically on the evidence within the period of the complaint (June 2007 until June 2008). However it was submitted that the other material for periods outside of the period of the complaint was relevant to an understanding of the Applicant's case. The Applicant representative submitted that the Respondent had not had provided evidence to dispute the Applicant's claims, and as such the Applicant's account should be accepted. She noted further that Mr Althofer's statement had been admitted into evidence without cross-examination and his statement should also be accepted by the Tribunal. The Applicant's legal representative submitted that the Applicant was a valuable member of the ambulance service, she had contributed hundreds of hours of service, and she is a loss to understand her treatment by the Respondent. The Applicant's legal representative did not make submissions explaining how the Applicant's evidence demonstrated breaches of the Act by the Respondent, nor did she particularise such breaches of the Act.
The Respondent submitted that much of the Applicant's evidence was general, non-specific, and did not contain dates or specific detail which would assist the Tribunal. Submissions were made as to the weight which should be given by the Tribunal to the statement of Mr Althofer and also the Applicant's evidence. It was submitted that the Applicant's evidence did not provide material of substance on which the Tribunal could make findings of fact that the Respondent had breached the provisions of the Act. It was submitted that the Applicant had not articulated specific breaches of the Act by the Respondent.
The Legislation and discussion of legal provisions
Sexual Discrimination
Sections 24 and 25 of the Act, relevantly to the present case, provide:
24 What constitutes discrimination on the ground of sex
(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
25 Discrimination against Applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of sex:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(1A) Nothing in subsection (1) renders unlawful discrimination by an employer against a woman on the ground of sex if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman is pregnant.
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
As noted above the evidence of the Applicant consisted of the written material filed and legal submissions, and the statement by Mr Althofer. The Applicant did not give sworn evidence nor did she submit to cross-examination, as such there is a question as to the weight which can be given to the Applicant's evidence. However, even taking the Applicant's written evidence at its highest (as the Respondent did not give evidence in response to much of the Applicant's evidence) the Tribunal is still required to find, on the evidence, that the Applicant has established on the balance of probabilities, her case. As noted above the Applicant's case is that she was discriminated against in her employment on the ground of her sex - sexual discrimination. She also asserts that she was victimised.
In relation to her claim of sexual discrimination, the Tribunal has had regard to the approach of the Tribunal as set out by the Appeal Panel in the case of Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5
41 The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts. While there has been some confusion and inconsistency there is clear authority to guide us. In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105):
The inquiry for which the section calls is a factual one involving essentially, two separate questions. The first, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)?.........
45 It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.........
Causation
47 If the Tribunal had satisfied itself that differential treatment, as we have described it, had occurred, it should then have considered the issue of causation.
The Appeal Panel of the Tribunal considered the issue of causation in discrimination and victimization cases in detail in the case: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. After reviewing the authorities the Tribunal stated:
28 Conclusion . The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.
The questions before the Tribunal are whether the Applicant has established on the evidence, that she suffered differential treatment in the workplace and secondly, that at least one of the real, genuine or true reasons for the differential treatment was her sex.
The Tribunal considers that the Applicant has not provided clear evidence of differential treatment: she has relied on assertions and generalised claims (refer to discussion of evidence in paragraphs 16 to 25 above); and has also given evidence that her complaints were ignored and she asserts that this was differential treatment.
The issue of the difficulties for an Applicant to establish evidence to support their case was discussed by the Tribunal in detail in the case of: Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt's case):
There is no direct evidence before the Tribunal that these decisions of the Club were based on the Applicant's race or sex or both. The Applicant's case is based on circumstantial evidence.
This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. "
The Tribunal recognises the difficulty faced by an Applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the Applicant was on the ground of the Applicant's race or gender.
In cases where there is no direct evidence of the discrimination, the Applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R. ......
....Difficulty in obtaining evidence
71 When relying on inference an Applicant must identify the evidence on which the inference can reasonably be based. .....
.......74 This difficulty for an Applicant has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia &Ors[1989] HREOCA 3Einfeld J said at p 11
. . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the Respondents, and be difficult for complainants to elicit in any credible form....
Absence of evidence
82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination....
.....Evidence supporting an inference of other grounds
87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt's race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt's race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct.
The principles enunciated in Dutt's case, set out above, are relevant also to a claim of sexual discrimination and victimisation. As noted in the summary of the Applicant's evidence above, the Applicant did not provide direct evidence of sexual discrimination. She provided evidence of an environment in the workplace which she perceived to be intimidatory/bullying/harassing and also made generalised claims that women were treated poorly by the Respondent. In particular, she claimed that if she were a male her complaints would have been responded to differently, and the failure of the Respondent to respond to her complaints, and address the workplace environment, was due to differential treatment of the Applicant as a woman. There is no direct evidence to prove that, if the Respondent did fail to respond to her complaints, that one of the real or genuine reasons that the Respondent so failed to respond was because she was a woman; and there is no direct evidence that if she was a man her complaints would have been responded to more quickly. The Applicant's evidence invites the Tribunal to draw this inference. The evidence also indicates that a large number of complaints were made by the Applicant (Mr Althofer estimated some 30 or 40 complaints). An inference which is open to the Tribunal on the evidence is that a reason for the differential treatment of the Applicant by the Respondent in relation to complaints made, if such differential treatment indeed existed, was the large number of complaints that she made, rather than the fact that she was a woman. The Applicant needs to establish that one of the true or genuine reasons for the alleged differential treatment by the Respondent was her sex, other reasons may also be present, however the Applicant needs to establish that a true or genuine reason for any differential treatment was her sex.The Applicant relies on inferences: as set out in Dutt's case, where there is evidence of plausible and probable grounds other than the Applicant's sex for less favourable treatment, this makes it extremely difficult for the Applicant to establish, on inference alone, that sex was more probably than not also a ground for any differential treatment. There is no direct evidence of the differential treatment, the Applicant asserts that she was subject to differential treatment in relation to the Respondent's response to her complaints, (as opposed to complaints of male employees). Even if the Tribunal accepts that there was differential treatment of the Applicant, the Tribunal must also be satisfied that a true or genuine reason for the differential treatment was the Applicant's sex. The Tribunal is asked to infer this from the Applicant's evidence about her experience of working for the Respondent. On the Applicant's evidence, there are a number of other plausible and probable inferences which could be drawn, including the number of complaints made by the Applicant, her support for station master Althofer and her discord with the union. Given these other probable explanations (which the Applicant also asserts throughout her evidence as the reasons for the alleged adverse treatment, as set out above in these Reasons) the Tribunal could not be satisfied on the evidence presented, that it could draw the inference from the Applicant's evidence, that a reason that she suffered the alleged differential treatment in the workplace, and in particular in the way the Respondent investigated her complaints, was her sex.
The Applicant also asserted that she suffered harassment and bullying in the workplace, and that this was part of her claim of sexual discrimination. The issue of when harassment constitutes sexual discrimination has been the subject of many decisions by the Tribunal.In Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 the Appeal Panel of the Tribunal stated:
2 Ms Carter lodged a complaint with the President of the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (the Act). The President referred the complaint to the Tribunal characterising it as a complaint of sexual harassment and sex discrimination . Prior to 1997, a person could only substantiate a complaint of sexual harassment if the conduct breached the provisions relating to sex discrimination . The sex discrimination provisions make it unlawful for an employer to discriminate against an employee on the ground of sex in relation to the terms and conditions which the employer affords to the employee. Sex discrimination occurs where an employer treats the person less favourably than he or she treats or would have treated a person of the opposite sex in the same or similar circumstances. In O'Callaghan v Loder[1983] 3 NSWLR 89 Judge Mathews DCJ held that the creation of a hostile working environment constitutes differential treatment in relation to the terms or conditions of employment.
3 Specific provisions making sexual harassment unlawful were introduced in 1997. Section 22B of the Act makes it unlawful for an employer (in this case Mr Fitzgerald) to sexually harass an employee. Sexual harassment is defined in s 22A as follows:
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
4 Ms Carter claimed that Mr Fitzgerald's conduct came within the definition of sexual harassment in s 22A(a).
Sex discrimination complaint
19 Terms and conditions and detriment. The President of the Anti-Discrimination Board referred Ms Carter's complaint as a complaint of sexual harassment and sex discrimination . Ms Carter alleged that the Respondent had breached the sex discrimination provisions by discriminating against her either in the terms or conditions of her employment or by subjecting her to a detriment: s 25(2). In O'Callaghan v Loder[1983] 3 NSWLR 89 the Tribunal discussed the nature of conduct that would affect the terms and conditions of an employee's employment. At p 103, the Judge Mathews DCJ said that:
In the normal course of events it is the persistence in the sexual conduct which renders it unlawful under this head. A single approach by an employer would be unlikely to fall within sec 25(2)(a). But one cannot discount the possibility of an employer's single act of sexual aggression so tainting the working environment as to come within this section. It would thus be wrong for this Tribunal to limit the numbers or types of approaches which might attract sec 25(2)(a). It will depend entirely upon the circumstances of each case. But before this section can be invoked the conduct of the employer must create an unwelcome feature of the employment in a continuing rather than an isolated sense.
20 Consistent with this passage, the Tribunal found, at [35] that the evidence fell well short of establishing that a hostile or demeaning atmosphere had become a feature of the workplace environment. The Tribunal noted that the complaint was about a single instance and that up until the day of the party Ms Carter was happy with her job. Contrary to Ms Carter's submission, the Tribunal did not decide that the conduct needed to span a particular time period before it will be in breach of s 25(2). Ms Carter submitted that the evidence does not support the Tribunal's finding that the complaint was about a single instance, but that is a question of fact.
In the case Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (21 April 2008) the Tribunal stated:
33 The question of whether harassing behaviour can amount to unlawful discrimination was first addressed in New South Wales by Mathews DCJ in O'Callaghan v Loder[1983] 3 NSWLR 89. In that case her Honour found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment. Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These principles apply equally to harassment on other grounds including disability.
34 When determining whether the harassment to which Mr Zhang said he was subjected constituted discrimination, the Tribunal asked itself the wrong question. In relation to the first incident, which occurred on 13 March 2003, the question is not whether Mr Morris was justified in requesting that Mr Zhang not to sit near another staff member during his lunch break. In relation to the other two incidents, the Tribunal concluded that there had been no differential treatment without providing any reason for reaching that conclusion. In relation to all the incidents of alleged harassment the Tribunal should have applied the principles in O'Callaghan v Loder and asked whether the workplace was poisoned by disability harassment and, if so, whether the Respondent failed to respond appropriately. In our view the Tribunal erred in its consideration of the harassment allegations.
Consistently with the Tribunal's approach in previous cases, this Tribunal has considered the Applicant's evidence about the harassment/bullying/intimidation/isolation which she claims she experienced in the workplace, and the Tribunal has asked itself whether the workplace was poisoned by sexual harassment. If so satisfied the Tribunal would then be required to consider whether the Respondent failed to respond appropriately. The Applicant has given evidence that she was subject to harassment/victimisation/isolation/bullying in the workplace. She has made general assertions that women are not treated well by the Respondent in the workplace. However, when providing evidence about the harassment/intimidation/bullying/isolation which she says she suffered the Applicant does not give evidence of sexualised behaviour or conduct by the Respondent, or employees of the Respondent, which would ordinarily be considered to be harassment of a sexual nature, sexual harassment. Further, the Applicant advances various reasons for the harassment occurring - in particular she gives evidence that the reasons included her support for station master Althofer, and her difficulties with members of the union. She complains of inappropriate and unprofessional conduct by ambulance officers, for example theft of equipment and failure to follow ambulance service rules, however she does not give evidence of particular incidences where she experienced harassment on the basis of her sex, or because she is a woman. Having considered the Applicant's evidence very carefully the Tribunal is not satisfied that she has presented evidence to indicate that there was a workplace poisoned by sexual harassment. The evidence given by the Applicant about various instances and complaints is summarised above in these reasons for decision. The Tribunal is mindful that there can be many reasons for the treatment of an employee, and that this does not exclude sexual discrimination being one reason for any adverse treatment, however, the Applicant needs to satisfy the Tribunal that one of the true or genuine reasons that she experienced differential treatment was her sex. For reasons detailed the Tribunal is not so satisfied.
The Applicant is required to prove on the balance of probabilities that the Respondent contravened the provisions of the Act. The Tribunal finds that the evidence submitted by the Applicant provides a lot of detail about her treatment whilst an employee of the Respondent, but does not provide evidence that a real or genuine reason for the treatment which she says she experienced, was treatment by the Respondent on the ground of the Applicant's sex. Indeed, in much of her evidence she advances alternative reasons for her perceived mistreatment and the hostile work environment, in particular that the reason was her support of stationmaster Althofer. Other reasons advanced by the Applicant include her poor relationship with union representatives, and her reporting of misconduct by other ambulance officers. She does not give any evidence of specific acts of adverts treatment which were suffered by her on the grounds of her sex. The only evidence linking her experiences to her status as a woman, and thereby to her sex, are her generalised comments that women are poorly treated, that complaints made by a man are responded to differently, and that if she was a woman her complaints would have been assessed differently. . These are unsubstantiated assertions not supported by any detail in the Applicants evidence presented to the Tribunal, nor supported by other witnesses. For the reasons discussed above,and having regard to the evidence as detailed, the Tribunal is not satisfied that the Applicant has established on the evidence that she suffered discrimination on the grounds of her sex.
The Tribunal went on to decide whether the Applicant established a claim of victimisation on the evidence presented.
Victimisation
Section 50 of the Act provides:
(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
In interpreting the requirements of s50(1) of the Act, the Tribunal agrees with the statement of the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 235 -
The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1).
In the case of Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 the Tribunal stated:
The elements of victimisation can be described as a four-fold requirement. Firstly, the Respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the Respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith. That defence is not relied on in this case. It has been suggested that there is an additional requirement of intention implicit in the word "subject" (see Bhattacharya v Department of Public Works (1984) EOC 92-117; Bogie v The University of Western Sydney (1990) EOC 92-313). However, in the light of later decisions (particularly Australian Iron Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, at EOC pp 78,674 and 78,687; CLR pp 359 and 382) in our view this requirement means no more than that the conduct of the Respondent was done on one of the grounds referred to and adds nothing of substance to the other stated requirements. The phrase "in any circumstances" which does not appear in Federal legislation in our view emphasises that the word "detriment" is to be given a broad interpretation. As to the meaning of the word "detriment" we do not consider it helpful to refer to the relative concept more applicable to discrimination provisions namely "to suffer a material difference in treatment" but prefer the Macquarie Dictionary meaning of "loss damage or injury" (cf Bodart-Bailey v Australian National University, (1995) EOC 92-744 at p 78,553.
The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the Respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.
In the Applicant's written evidence she appears to claim that the mistreatment which she suffered over the years, and in particular suffered through her complaints not being taken seriously, and through the behaviour which she experienced from other officers, was harassment and/or victimisation. She also talks of her experiences of mediation, but these experiences occur outside the period of her complaint. She does not give a specific account that she suffered a specific detriment due to taking action as set out in section 50 (1) of the Act. As noted above, in assessing claims of victimisation, the Tribunal needs to determine whether the Applicant has taken an action as set out in section 50 (1) of the Act; and whether there was detriment suffered, and a causal link between the Applicant's action under section 50 (1) of the Act and any detriment suffered. The Applicant has not presented evidence that, prior to June 2008, the Applicant took an action to which s50(1) refers - there is no evidence that prior to June 2008 she had made a complaint that the Respondent had breached the Act. In her complaint letter of 11 January 2008 (attachment 1.a to Annexure A ) she makes no statement that she was discriminated against for reason of her sex - rather she states that it was because of her support for Mr Althofer. She does not state that the Respondent, or the Respondent's employees, committed an act which would amount to a contravention of the Act. She does mention in this letter treatment of women in a general sense, but does not detail or complain about any specific instance where she suffered differential treatment because she was a woman, and her complaint of that date cannot be seen as an action as set out in s50(1) of the Act. In relation to her specific complaint (attachment 1C to Annexure A) this relates to her complaint that another officer seemed to know that she had made a complaint about him - however, no detail is presented about the actual complaint made by Ms Gould about that officer - there is no evidence to indicate that the complaint about the other officer was a complaint involving sexual discrimination or harassment, and no evidence to support a conclusion that the complaint about the other officer was a complaint that that other officer had acted toward Ms Gould in a way which would constitute sexual discrimination, sexual harassment or victimisation. As such the complaint made by Ms Gould (attachment 1C to Annexure A) cannot be found to be an action as specified in s 50(1) of the Act. Further, the letter of 27 March 2008, being the grievance lodged by the Applicant with the Professional Standards and Conduct Unit, does not, in the Tribunal's view, represent action by the Applicant as set out in section 50(1) of the Act. The contents of the grievance of 27 March 2008 are summarised in detail in paragraph 19 of these reasons for decision, and it is noted that no claims were then made by the Applicant that the Respondent, or the Respondent's employees, had by particular acts or actions, contravened the provisions of the Act. As noted in paragraph 19 of these reasons for decision, some vague and generalised assertions were made and the Tribunal is not satisfied that those generalised assertions represented the taking of action by the Applicant in terms of section 50(1)(c) of the Act, nor would those generalised assertions support a finding that the Applicant took action as set out in s50(1) (a)(b) or (d). It is clear from the evidence that Ms Gould made many complaints about issues and behaviour of other officers; however, it is not any complaint which will make out a victimisation claim under the Act. The Applicant must establish that she was victimised because she took an action as set out in paragraphs (a) to (d) of section 50(1) of the Act. As the Tribunal is not satisfied that the Applicant took such an action then the Applicant's claim that she suffered victimisation fails.
If the Tribunal is wrong in finding that the Applicant did not take an action as set out in paragraphs (a) to (d) of section 50(1) of the Act (in her various complaints set out in her evidence to the Tribunal) then the Tribunal has also considered whether the Applicant has established that she suffered detriment in her employment for reason of any action taken by her to complain about experiencing sexual discrimination/harassment in employment. The Tribunal refers to the guidance provided in other Tribunal decisions, set out above. In Dutt's case (refer paragraph 45 above) and the case of Sivananthan v Commissioner of Police, NSW Police Service (refer paragraph 46) it was noted that the Applicant must provide evidence that she suffered a detriment. In the present case the Applicant has provided no clear evidence to indicate that after making complaints, and in particular her complaint of 27 March 2008 where she made some generalised claims of discrimination or differential treatment, she suffered a detriment. There is no evidence presented by the Applicant that she suffered a detriment between March 2008 and the making of her complaint to the Anti-Discrimination Board in June 2008. As there is no evidence presented by the Applicant of a detriment which she suffered at the hands of the Respondent, subsequent to the complaint which she made on 27 March 2008, then the Tribunal is not satisfied that she has established on the evidence that she suffered a detriment (in terms of section 50(1) of the Act) to support a claim of victimisation under the Act.
If the Tribunal is wrong in its findings in relation to detriment, the Tribunal observes that it would not have been satisfied that the Applicant had proved a causal link between any detriment suffered and any action taken by her to complain about sexual discrimination/harassment by the Respondent. The Tribunal notes the guidance provided in Dutt's case in relation to the drawing of inferences, in the absence of direct evidence, as set out at paragraph 37 above. The Applicant has provided no direct evidence that a true or genuine reason for any detriment suffered by her, due to any complaint that the Respondent had acted towards her in a sexually discriminating/harassing way, was because of her having made such a complaint. There is very little circumstantial evidence provided on which such an inference could be drawn. If the detriment which the Applicant asserts she suffered was the workplace discord which she details in her evidence, then there are other plausible and probable inferences for such discord, namely the numerous complaints made by her about conduct of other officers, her history of disagreement with the union, and her support for station master Althofer. Given the other probable and plausible explanations for any detriment which may be disclosed on the Applicant's evidence, consequent upon her making a complaint, then the Tribunal could not be satisfied that the Applicant had established that a true or genuine reason for any detriment suffered by her, was the making of a complaint (or taking of an action as set out in s50(1) of the Act). However, as set out above, the Tribunal found that the Applicant provided no clear evidence to support a finding that she suffered a detriment at the hands of the Respondent for making a complaint , (being a complaint in the nature of the Applicant taking action as set out in section 50 (1) of the Act). In assessing the Applicant's claim of victimisation the Tribunal has noted that it is difficult for the Applicant to prove this claim, given the unsubstantiated nature of her evidence, the unclear way that she has presented her case, and the lack of clear, substantial evidence to support her claim that she has been victimised has set out in the Act.
For reasons detailed above the Tribunal is not satisfied that the Applicant has established, on the evidence, on the balance of probabilities, her case, and accordingly the Tribunal orders that the application is dismissed.
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Decision last updated: 28 February 2011
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