Hautlieu Pty Ltd t/a Russell Pathology v McIntosh
[2000] WASCA 146
•26 MAY 2000
HAUTLIEU PTY LTD T/AS RUSSELL PATHOLOGY -v- McINTOSH [2000] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 146 | |
| Case No: | SJA:1194/1998 | 23 MARCH 1999 | |
| Coram: | McKECHNIE J | 26/05/00 | |
| 52 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| PDF Version |
| Parties: | HAUTLIEU PTY LTD T/AS RUSSELL PATHOLOGY NIDTHAYA McINTOSH |
Catchwords: | Equal opportunity Discrimination on the basis of family relationship Whether family relationship confined to relationship of care or responsibility Jurisdiction of Supreme Court Appeal on error of law Extent to which errors of fact can constitute error of law Victimisation Dominant or substantial purpose of acts done Meaning of detriment Inference to be drawn |
Legislation: | Equal Opportunity Act WA 1984 |
Case References: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985-86) 4 NSWLR 139 Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 Department of Health v Aramagum (1988) VR 319 Haines v Leves (1987) 8 NSWLR 442 IW v The City of Perth (1997) 71 ALJR 943 Kalgoorlie Taxi Cars Owners Association Inc v Regan, unreported; SCt of WA (Templeman J); Library No 980075; 20 February 1998 Minister for Immigration v Pochi (1980) 44 FLR 41 Ministry of Defence v Jeremiah [1980] QB 87 O'Callaghan v Loder (1983) 3 NSWLR 89 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Warren v Coombs (1979) 142 CLR 531 Abalos v Australian Postal Commission (1990) 171 CLR 167 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 Bhattacharya v Department of Public Works (1984) EOC 92-117 Bulstrode v Trimble [1970] VR 840 Cotton v Walker (1993) 11 WAR 55 Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 Fenwick v Beveridge Building Products Pty Ltd (1986) EO 92-147 IW v City of Perth (1997) 71 ALJR 943 Mount Isa Mines Ltd & Ors v Narelle Hopper, unreported; SCt of Qld (Moynihan J); (1998) QSC 287 Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Stojkovski v Fitzgerald [1989] WAR 328 Waters v Public Transport Corporation (1991) 173 CLR 349 Williams & Anor v Council of Shire of Exmouth (1990) EOC 92-296 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HAUTLIEU PTY LTD T/AS RUSSELL PATHOLOGY -v- McINTOSH [2000] WASCA 146 CORAM : McKECHNIE J HEARD : 23 MARCH 1999 DELIVERED : 26 MAY 2000 FILE NO/S : SJA 1194 of 1998 BETWEEN : HAUTLIEU PTY LTD T/AS RUSSELL PATHOLOGY
- Appellant
AND
NIDTHAYA McINTOSH
Respondent
Catchwords:
Equal opportunity - Discrimination on the basis of family relationship - Whether family relationship confined to relationship of care or responsibility - Jurisdiction of Supreme Court - Appeal on error of law - Extent to which errors of fact can constitute error of law - Victimisation - Dominant or substantial purpose of acts done - Meaning of detriment - Inference to be drawn
Legislation:
Equal Opportunity Act WA 1984
Result:
Appeal allowed in part
(Page 2)
Representation:
Counsel:
Appellant : Mr M H Zilko
Respondent : Ms H K Andrews
Solicitors:
Appellant : Clayton Utz
Respondent : Commissioner for Equal Opportunity
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985-86) 4 NSWLR 139
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Department of Health v Aramagum (1988) VR 319
Haines v Leves (1987) 8 NSWLR 442
IW v The City of Perth (1997) 71 ALJR 943
Kalgoorlie Taxi Cars Owners Association Inc v Regan, unreported; SCt of WA (Templeman J); Library No 980075; 20 February 1998
Minister for Immigration v Pochi (1980) 44 FLR 41
Ministry of Defence v Jeremiah [1980] QB 87
O'Callaghan v Loder (1983) 3 NSWLR 89
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588
The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Warren v Coombs (1979) 142 CLR 531
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1
Bhattacharya v Department of Public Works (1984) EOC 92-117
Bulstrode v Trimble [1970] VR 840
Cotton v Walker (1993) 11 WAR 55
(Page 3)
Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472
Fenwick v Beveridge Building Products Pty Ltd (1986) EO 92-147
IW v City of Perth (1997) 71 ALJR 943
Mount Isa Mines Ltd & Ors v Narelle Hopper, unreported; SCt of Qld (Moynihan J); (1998) QSC 287
Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Stojkovski v Fitzgerald [1989] WAR 328
Waters v Public Transport Corporation (1991) 173 CLR 349
Williams & Anor v Council of Shire of Exmouth (1990) EOC 92-296
(Page 4)
- McKECHNIE J:
Introduction
1 In February 1992 the respondent, Mrs Nidthaya McIntosh, commenced employment with Hautlieu Pty Ltd trading as Russell Pathology. Her sister, Teerawan Polsittichock, was also employed by Russell Pathology. In April 1995, Ms Polsittichock gave notice of her resignation and resigned in somewhat acrimonious circumstances. Mrs McIntosh asserts that as a result she was discriminated against in various ways until she submitted her resignation on 12 July 1996.
2 She approached the Equal Opportunity Commission who advised Russell Pathology by letter dated 10 May 1996 that a complaint had been lodged. Mrs McIntosh alleged that from shortly after that time she was victimised as a consequence of her having lodged a complaint.
3 Between 4, 7 and 11 August 1998, the Equal Opportunity Tribunal heard her case. On 9 November 1998 it delivered its reasons for decision. It found that Mrs McIntosh had been discriminated against by reason of her relationship with her sister and awarded $4,000 in damages. It made a further award of $3,461 for special damages, being loss of salary.
4 It also found that she had been victimised and awarded a further $2,500 in damages. The total award of damages was $9,961.
5 From that decision the appellant has appealed, claiming that the Tribunal made errors of law.
6 Because of possible confusion in the nomenclature between proceedings in the Tribunal and proceedings on appeal, I shall hereafter refer to the appellant as Russell Pathology and the respondent as Mrs McIntosh.
7 Appeals to this Court are pursuant to the Equal Opportunity Act 1984 s134 which gives to a party aggrieved by a decision of the Tribunal the right of appeal to the Supreme Court on a question of law. Grounds 1, 2 and 4 appear to be a challenge to factual matters found by the Tribunal. Ground 3 raises a legal question of interpretation.
8 The first question to be answered therefore is whether grounds 1, 2 and 4 of the appeal, considered separately, do raise questions of law.
(Page 5)
When do factual errors or omissions become questions of law
9 In The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126, the Full Court had under consideration questions of law referred to that court by a Judge. Jordan CJ set out a series of rules in cases where an appellate Tribunal has jurisdiction to determine only questions of law. Omitting (1) and (2) and leaving out the references to the cases which support his rules, but which can be found at 138 of the report, the relevant rules are:
"(3) a finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences …
(4) Such a finding can be disturbed only
(a) if there is no evidence to support its inferences, or
(b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences … or
(c) if it has misdirected itself in law. …"
"The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 W N (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 S R (NSW) 126 at 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483. But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v Commonwealth (1987) 163 CLR 54 at 77 per
(Page 6)
- Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex Parte White (1966) 116 CLR 644 at 654:
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
11 In Azzopardi v Tasman UEB Industries Ltd (1985-86) 4 NSWLR 139, the question under consideration was what constituted an error of law in an appeal from the Workers' Compensation Board. Speaking for the majority of the Court of Appeal, Glass and Samuels JJA, Glass J held at 156:
"… Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test ... will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General. Accordingly this court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found."
(Page 7)
- Kirby J, who dissented in the result, said at 151:
"… The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene."
13 In Haines v Leves (1987) 8 NSWLR 442, the New South Wales Court of Appeal considered the nature of an appeal from the Equal Opportunity Tribunal of that State concerning the segregation of pupils coming from within a local community into single sex schools. Kirby P revisited the decision in Azzopardi. At 469, he said:
"It is important to note again that the jurisdiction of this Court is limited to hearing appeals 'on a question of law': see the Act, s118. It is not for us to substitute our views on the interpretation of the facts. That is a function reposed by Parliament in the Tribunal. Law operating on fact, there is no gulf between them. They interact in the process of decision making. But the stringency of the limitation in the entitlement of this Court to examine factual determinations recently stressed by the Court was in an appeal from another specialist tribunal, the Compensation Court of New South Wales. Appeals from that Court are, relevantly, also limited to questions of law. In Azzopardi the majority (Glass JA, with whom Samuels JA agreed) stressed that in appeals such as the present, the legislation does not allow the Court to correct errors of fact. It does not permit the Court to review even a finding of fact which
(Page 8)
- is said to be perverse or contrary to the overwhelming weight of evidence or even against the evidence and the weight of the evidence. Nor may the Court review findings on the facts which are alleged to ignore the probative force of the evidence which is all one way, even if no reasonable person could have reached the decision made and even if the reasoning by which the Court arrived at its finding was demonstrably unsound. In all such circumstances, the Court concluded, no error of law would be shown to attract the jurisdiction of this Court. The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer a relief, within its remit on questions of law. In Azzopardi I suggested the perversity and illogical reasoning would attract the jurisdiction of the Court. But this was a minority view. The majority opinion is the binding rule. It must be observed in this case."
14 In Kalgoorlie Taxi Cars Owners Association Inc v Regan, unreported; SCt of WA (Templeman J); Library No 980075; 20 February 1998, Templeman J considered an appeal against the findings of the Equal Opportunity Tribunal on grounds that asserted either expressly or in effect that the Tribunal erred in law because it made certain findings fact "against the weight of the evidence". Templeman J referred to Australian Broadcasting Corporation v Bond (supra) and Minister for Immigration v Pochi (1980) 44 FLR 41. Templeman J held that he should apply the common law approach that only where there is no probative evidence will it be possible to overturn a finding of fact on the basis that it involves an error of law. Once each finding of fact is supported by some rationally probative evidence, then it cannot be said that the Tribunal has erred in law even though the finding is against the weight of the evidence.
15 In Department of Health v Aramagum (1988) VR 319, Fullagar J heard an appeal on a question of law against orders made by the Equal Opportunity Board in relation to a complaint of discrimination on the basis of race.
16 That the appeal by way of order nisi to review raised questions of law seems to have been assumed on all parts. Fullagar J allowed the appeal and made absolute the order nisi on three grounds. The first ground was to the effect that it was not open to the Board to find that the respondent had discriminated against the complainant on the ground of his
(Page 9)
- race in breach of the Equal Opportunity Act (Vic). This ground asserted an error of law on the basis that there was no evidence from which a finding could be made.
17 Ground 2 was a ground that the Board had failed to consider whether, on the whole of the evidence, the complainant had discharged the ultimate legal onus of proof that rested upon him. I consider that also to be a question of law.
18 Ground 3 was as follows:
"The Board was wrong in law in holding that if the primary facts indicated discrimination (as it found they did) then the respondent was required to give a clear and specific explanation of its actions, to the satisfaction of the Board, and if there were no such explanation, or if the explanations given were not accepted by it, the complainant was entitled to succeed."
19 This again seems to me to raise a ground of law.
20 Significantly, grounds which asserted that the Board failed to take into account relevant matters, and in concluding no explanation had been given to it, were not the subject of the rule absolute.
21 Counsel for Russell Pathology invited me to pay close attention to this case, indicating that they strongly supported his argument. I do not consider the case stands for so wide a series of propositions as counsel asserts. True it is that Fullagar J held that the Board could not make an inference when probable and innocent explanations were available on the evidence. Further, in the Judge's opinion, upon the evidence accepted by the Board, other explanations than utter unreasonableness or actual racism for the conclusions of the members of the panel were clearly more probable. In my opinion, these comments were explicable on the basis of the question of law raised as to the discharge of the burden of proof.
22 I have spent some time setting out the statements of principle because the issue as to whether there is a question of law disclosed by the grounds of appeal goes to the jurisdiction of this Court to entertain the appeal. Parliament has set up a specialist Tribunal to deal with matters of discrimination. The Tribunal consists of a President, appointed by the Governor, who shall be a legal practitioner of not less than seven years' standing in practice and two other members appointed by the Governor: s 96.
(Page 10)
23 The Tribunal has complete discretion as to matters of fact. That the Supreme Court's jurisdiction is limited is given further emphasis by s 134(4), which provides that:
"The Supreme Court shall hear and determine the question of law on the appeal and shall -
(a) remit the decision of the Court on that question to the Tribunal; or
(b) make such other order in relation to the appeal as to the Court seems fit."
24 The expectation would appear to be that there will be cases where the Tribunal may have misdirected itself on a question of law and, after correction, the matter will be remitted for the Tribunal to proceed in accordance with the law, it being for the Tribunal to apply that correct law to the facts.
25 Because the determination of the question whether the grounds of appeal disclose an error of law goes to jurisdiction, no assistance is gained from cases where the statutory nature of the appeal is different. In Vrisakis v Australian Securities Commission (1993) 9 WAR 395, at 447, Ipp J commented on the nature of an appeal under the Justices Act by way of rehearing pursuant to O 65 of the Supreme Court Rules. His Honour there referred to Warren v Coombs (1979) 142 CLR 531. In that case, there was an appeal by way of hearing from a Judge sitting without a jury and it was held that the appellate court was in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which were undisputed or established by findings.
26 In Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322, another case relied on by Russell Pathology, the Medical Act s 13(8) provided expressly that an appeal should be in the nature of a rehearing and the Judge hearing the same may make, confirm, quash or vary the order made by the Board.
27 Although the Equal Opportunity Act s 134(2) provides an appeal should be made in accordance with the Rules of Court, those rules cannot change the right of appeal in the statute: Bradshaw v Medical Board of Western Australia (supra), at 325.
28 The Rules of Court in this case come from O 65, which order applies to appeals from the Equal Opportunity Tribunal.
(Page 11)
29 Order 65 r 10 provides:
"1. Subject to paragraph (2), the appeal shall be in the nature of a rehearing, and the Judge hearing the appeal may confirm, quash or vary the decision of the tribunal against which the appeal is made or remit the matter to the tribunal for rehearing, with or without directions.
2. The Judge may determine the appeal on the material that was before the tribunal when it gave its decision or, by special order given before or at the hearing, on such additional or fresh evidence, either oral or by affidavit, as may be allowed, or partly in the one way and partly in the other, and the Judge may rehear the testimony of any witness, whether by way of examination or cross-examination, and any party to the appeal may be represented by counsel."
30 The order does not enlarge the Court's jurisdiction to review findings of fact. It is difficult to see how O 65 r 10 can have application to appeals on questions of law alone.
31 The functions of an appellate court in relation to findings of fact by a court have been comprehensively examined in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588.
32 In that case the High Court examined the appeal to the Court of Appeal which was by statute (Supreme Court Act 1970 (NSW) s 75A) by way of rehearing and the Court "had the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning amendment to the drawing of inferences and the making of findings of fact. ..." As Kirby J pointed out at par 69, the appeal in that case did not involve a question of legal controversy but was essentially a question of fact.
33 Kirby J also pointed out the fallibility of judicial evaluation of credibility from the appearance and manner of witnesses. At 617 his Honour said:
"4. There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances
(Page 12)
- of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana) (1924) 20 LI L Rep 140 at 152, Atkin LJ remarked that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour'. To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same 'infallible' capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption. … Lord Devlin in The Judge (1979) at 63 quoted with approval a remark of MacKenna J: 'I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability … to discern from a witness' demeanour, or the tone of his voice, whether he is telling the truth.' It was a becoming but entirely accurate modesty."
34 Of particular significance is the passage at 620, par 93:
"… Where there is other evidence, unchallenged, unanswered, ostensibly reliable and supported by uncontested contemporaneous records, an adverse credibility finding in respect of one witness or more does not remove from consideration all of the other evidence. Nor can it relieve the trial judge, or the appellate court when required, of the duties of analysis and the provision of reasons to demonstrate and explain that such analysis has occurred."
35 It may have been with this principle in mind that the grounds of appeal were drafted. However, while the passage just quoted is binding whenever a court is considering an appeal from a court, the decision has no application to an appeal on a question of law from a Tribunal.
36 An appellate court may have jurisdiction to determine an appeal on fact from another court. An appellate court only has jurisdiction to
(Page 13)
- determine an appeal from a Tribunal on questions of fact if the statute creating the Tribunal gives such jurisdiction to this Court.
Appeal grounds 1 and 2: The complaint of family discrimination
37 There were two aspects to the claim made by Mrs McIntosh. The first related to unlawful discrimination on the basis of family. This was pleaded by point 10 of the points of claim as follows:
"The Respondent has unlawfully discriminated against the Complainant on the ground of her family status by treating the Complainant less favourably than, in circumstances that are the same or not materially different, a person who does not have such a family status was or would have been treated
- in the terms or conditions of employment that the Respondent afforded the Complainant;
- by subjecting the Complainant to detriment in the course of her employment;
contrary to sections 35A and 35B of the Equal Opportunity Act 1984.
Particulars
(a) On no occasion prior to the resignation of the Complainant's sister in May 1995 did the Respondent or its employees:-
(i) indicate to the Complainant that her work was unsatisfactory;
(ii) reprimand or warn the Complainant about her conduct;
(iii) reduce the Complainant's duties and responsibilities.
(b) The Complainant repeats the matters set out in paragraph 9 above.
(c) On 1 June 1995, the Complainant was the subject of a severe written warning by the General Manager,
(Page 14)
- Dr Karthigasu, in relation to a complaint from a patient about the Complainant's handling of a telephone inquiry.
- In the same month, another employee was verbally reprimanded over a similar yet more serious complaint but received no warning, written or otherwise.
(d) In October 1995, the Complainant was informed by Dr Russell that she was not performing her work to a satisfactory level.
(e) On October 31 1995, Dr Russell's Assistant, Ms Emma Griffin ('Ms Griffin') informed the Complainant, in an aggressive manner and in a public area, that she was to attend to the telephone duties of Ms Ford when Ms Ford was absent from her desk. Such duties were not part of the Complainant's job description.
(f) On 21 November 1995, the Complainant received a telephone call from an irate patient. In keeping with established office practice, the Complainant transferred the call to Ms Ford in an attempt to calm the patient down. Ms Griffin informed the Complainant that she was [sic] take the call.
(g) On 22 November 1995, the Complainant received a letter from Dr Karthigasu regarding the incident of the previous day, in which concern was expressed about the Complainant's abilities generally.
(h) On 4 April 1996, the day before the Complainant was due to take annual leave, Dr Russell informed the Complainant that her work performance was unsatisfactory and that she would no longer be employed in her current position when she returned to work.
(i) In April 1996, upon her return from annual leave, the Complainant took up a junior position in the Respondent's administration team carrying out data entry duties. The Complainant's previous position as Accounts Manager was filled by another employee of the Respondent.
(Page 15)
- (j) Further, upon her return from annual leave, the Complainant discovered her working files missing. The Complainant asked her supervisor, Ms Annette Sheahan, about the files to which Ms Sheahan responded that she did not know about the files. Subsequently, Ms Sheahan confirmed that she had the files."
38 Of these particulars, Russell Pathology admitted (d) and (g). As to (c), it admitted that the complainant was given a warning but says the warning and other warnings referred to in (c) were entirely appropriate in the circumstances of each case.
39 As to (f), Russell Pathology admitted the facts but denied an established office practice to transfer calls from irate clients to other staff members. Paragraphs (a), (b), (e), (i) and (j) were not admitted and nor was par (h), except to say that on 4 April 1996, Dr Russell did inform Mrs McIntosh that her work performance was unsatisfactory.
The decision of the Tribunal
40 The Tribunal noted that the crucial question:
"… is whether there is a sufficient causal link between the alleged discriminatory conduct and the adverse consequences relied on. In this case her original complaint and by her Points of Claim subsequently filed, the Complainant asserts that she experienced adverse consequences because of the circumstances surrounding her sister's resignation and because her sister then went to work for a rival pathology organisation, namely Western Diagnostic. There is no direct evidence to this effect and therefore the Complainant is principally reliant upon inferences being drawn by the Tribunal."
41 The Tribunal concluded that:
"In the present case there are a number of facts and findings from which inferences can be drawn in favour of the complainant's case …"
42 Those inferences depended to a large extent on the view which the Tribunal took of the particular witnesses.
43 Its view of Mrs McIntosh was as follows:
(Page 16)
- "The Tribunal was favourably impressed by the manner in which Nid McIntosh gave her evidence. She spoke in a balanced and entirely coherent way about the problems she encountered towards the end of her employment with Russell Pathology although it became apparent that she had suffered considerable distress as a result of the matter she complained of. It was put to her in cross-examination, and this was a line of argument also reflected in closing submissions, that she was hypersensitive and had exaggerated her account of what happened. She refuted this, describing herself as 'quite a strong person'. The Tribunal accepts her view in that regard. The Complainant had a good grasp of the realities of the situation and the Tribunal is satisfied that her perceptions were generally accurate. Her description of what took place in the early years of her employment and the circumstances surrounding Teerawan's resignation were corroborated by her husband, her sister, Mr Woolley and Mr Fitzgerald. The Tribunal has no reason to doubt the word of these witnesses."
The grounds of appeal
44 The grounds of appeal are as follows:
"1. The Tribunal erred in law in finding that the Appellant discriminated against the Respondent because her sister had resigned from her employment with the Appellant and obtained alternative employment with another pathology company.
Particulars
- (i) There was no direct evidence of any casual link between the alleged discriminatory conduct of the Appellant and the events set out in paragraph 10 of the Points of Claim, as the Tribunal so found;
(ii) In the absence of any direct evidence of a casual link, the Tribunal drew inferences of discrimination without identifying properly or at all the primary facts from which those inferences were drawn;
(iii) In the alternative to (ii) above, the Tribunal drew inferences of discrimination from primary facts
(Page 17)
- when more probable innocent explanations were available on the evidence. In particular, the Tribunal failed to have regard to or give any weight to the uncontradicted evidence of the Appellant's witnesses that during the relevant period (1995-6) the Appellant undertook a major restructuring of its accounts and administrative department so as to introduce the concept of multi-skilling to members of its staff, including the Respondent, and that the Respondent's unhappiness during the above period was attributable to her inability to adjust to and participate in the new arrangements;
- (iv) There was no finding by the Tribunal of any identifiable fact from which it could reasonably be inferred that the Appellant's change of attitude to the Respondent in 1995 was due to her sister's resignation and her employment by another pathology company rather than the Respondent's general unhappiness caused by her inability to adjust to the introduction of multi-skilling by the Appellant.
- 2. The Tribunal erred in law in ignoring a large body of evidence which, if properly considered, would have satisfied the Tribunal that the Respondent was not discriminated against on the basis of her sister's resignation and employment by another pathology company.
Particulars
- (i) The uncontradicted evidence of the Appellant's witnesses, Robert John Russell, Annette Kay Sheahan, Kula Thungan Karthigasu and Belinda May Walker that nothing done by any of them in relation to the Respondent was motivated by the fact that her sister had left the Appellant's employment to work for another pathology company;
(Page 18)
- (ii) The evidence of Tanya Liakishev, which was not challenged in cross-examination, that the Respondent told her the restructuring and the change of the Respondent's job responsibilities were the real source of her complaint;
(iii) The evidence of Christine Anne Watson, which was not challenged in cross-examination, that the Respondent was unhappy because of the restructuring introduced by the Appellant, her lack of typing skills and the fact that the hours she would be required to work would not suit her.
(iv) The evidence of Belinda May Walker, which was not challenged in cross-examination, that she was never directed by the Appellant to treat the Respondent less favourably than other employees, that she saw nobody treat the Respondent less favourably than other employees, and that the Respondent had never said to her that she had been treated less favourably by the Appellant because her sister had resigned from the Appellant's employment to work for another pathology company.
- 3. The Tribunal erred in law in finding that the prohibition against discrimination on the ground of family responsibility or family status under sections 35A and 35B of the Equal Opportunity Act 1984 as amended applied to the matters set out in the Respondent's Points of Claim. The Tribunal should have found that the above sections were intended to be confined to the protection of people who were discriminated against because they had the care of or responsibility for another person who was directly or indirectly related to them."
45 Because of the Tribunal's reliance upon the evidence of Mrs McIntosh and her witnesses, and subsequently the rejection of certain portions of the evidence called on behalf of Russell Pathology, it will be necessary to examine in detail all the evidence adduced in the case in order to determine whether the Tribunal has so far ignored evidence as to constitute an error of law or, alternatively, has drawn inferences of discrimination where not at law available.
(Page 19)
46 However, it is also necessary to concentrate on the evidence called by Mrs McIntosh.
Chronology
47 Before commencing that analysis, it is helpful to set out a brief chronology of important events as taken from the Tribunal's reasons for decision. The dates of these events in the main seem to be uncontroversial.
48 Russell Pathology commenced trading in March 1988 and by 1992 had laboratory premises at Victoria Park and premises, used principally for administration in Maylands. On 8 February 1992 Russell Pathology placed an advertisement in The West Australian for an Office Manager. Mrs McIntosh commenced employment in February 1992 at the Maylands office.
49 In July 1994 Russell Pathology moved to new premises at Technology Park in Bentley.
50 On 26 April 1995 Ms Polsittichock gave notice of her resignation and was paid out and she left on 28 April 1995.
51 A short time later on 5 May 1995 she obtained work with a rival organisation, Western Diagnostic Pathology.
52 On 23 May 1995 Mrs McIntosh was given a new contract of employment in which she was described as Accounts Manager. The letter included a clause indicating her duties were on a probationary basis for three months, but after negotiation that was removed.
53 On 24 November 1995 Mrs McIntosh wrote to Dr Russell complaining of unfair treatment.
54 On 4 April 1996, the day before she was due to take annual leave, she was informed that her work performance was unsatisfactory and she would not be employed in her current position when she returned to work.
55 On 9 April 1996 she lodged a complaint of discrimination with the Commissioner of Equal Opportunity. By letter dated 10 May 1996, the Equal Opportunity Commission advised Russell Pathology that a complaint had been lodged. On 12 July 1996 Mrs McIntosh submitted her resignation.
(Page 20)
The evidence of Nidthaya McIntosh and her witnesses
56 Mrs McIntosh gave evidence that she has a Masters degree of Economics from Thailand and professional accounting qualifications from Edith Cowan University and is a qualified accountant. She applied by letter consequent upon the advertisement of 8 February 1992 and was interviewed by Dr Russell, commencing work on the Monday following the interview. When she commenced, Belinda Ford, who had started before her, was a junior clerk; Betty Flynn, the personal assistant to Dr Russell was in the office; Miss Polsittichock was working at Victoria Park; Ray Woolley was the financial controller and her supervisor.
57 She was given a duty statement as the accounts receivable senior. Some few months after she started she moved to the office which she understood to be the office manager's office and that she was taking up those duties. Those duties included supervising Belinda Ford, four phlebotomists and a receptionist in Maylands. When Mr Woolley resigned, Mrs McIntosh received a $5000 pay rise. Following Mr Woolley's resignation, she had no supervisor and thereafter contacted Dr Russell with whom she had good relations. At around the same time Mr Mike Fitzgerald joined the company. He had just graduated in Accounting from Edith Cowan University.
58 On 9 January 1993 she received an e-mail from Dr Russell in response to her e-mail requesting further full-time staff. The e-mail congratulated her by saying: "You have done very well and I am grateful for your contribution to our better situation at the bank".
59 In 1994 Emma Griffin replaced Betty Flynn. Ms Griffin reported to Dr Russell and she drew up a document for the staff. It showed "Nid McIntosh" as Office Manager, Annette Sheahan as Supervisor/Reception/Data Entry, Reuben Donn as Financial Controller and Alan Coker as Stores Manager. Primary job purpose, key accountabilities, performance measures and qualifications and experience were all listed. That was distributed on 30 August 1994.
60 In April 1995 her sister Teerawan Polsittichock, who was working in the cytology section as a screener, resigned. Following her resignation on the last Friday of the month, Dr Russell called her into his office:
"He said that you know that your sister resign. I said yes, I know just before she walk in his office to put in resignation. I didn't know anything before that. And he said that my job is safe. I won't take anything about your sister's resignation
(Page 21)
- against you. And he accuse my husband wrote a letter between Teerawan answer to her supervisor."
- Up until that time nobody had made complaints about her performance.
61 Shortly after, Dr Karthigasu who had been employed as General Manager, and was also a pathologist, offered her a new contract and new duties. The position was as Accounts Manager full-time with a salary of $31,500 to commence from 29 May 1995. It included a probationary period of three months. Because she had been there more than 3-1/2 years Mrs McIntosh did not see why she had to start on probation. After negotiation that clause was removed.
62 Accompanying the letter were a number of key accountabilities, including ensuring that total debtors were no more than 1.2 times the current month's fees, which she regarded was very hard to attain, and was not previously a target which she had been set. Some of her duties were tedious, done by juniors and she was responsible for them.
63 At about the same time she moved out of the office she had occupied into another room which had a bed on one side and a desk and computer. The room was used for collection samples by other people and when patients came in she had to get out.
64 There was a problem with a patient named Mrs Fowler. She asked Louise and the other girl to talk to the lady. Following this incident, Dr Karthigasu called her into the office and said there was a complaint. He subsequently wrote to her on 1 June 1995 setting out her duties, considering her behaviour to be below the standard of service, and said:
"You should consider this letter to be your first written warning concerning your standard of conduct. You hold a critical position in Russell Pathology and should further complaints be received or other areas of your work be assessed as below an acceptable standard I will be forced to review your employment with this company."
- At around this time she had been to the Equal Opportunity Commission and obtained a pamphlet. Following this incident she saw less of Dr Russell. The last time he told she had done a good job was the end of 1994.
65 The next warning she received was in November 1995. That incident is described in a memo from Emma Griffin to Dr Karthigasu and
(Page 22)
- attached to a letter he sent to Mrs McIntosh seeking her comment by 24 November.
66 Mrs McIntosh responded in a detailed memo dated 24 November 1995 which included the following:
"I am very concerned about the tone of Emma Griffin's memorandum and the letter from Dr Karthigasu. I feel I am being treated unfairly by the management of Russell Pathology.
My loyalty to you and the Company is under no question whatsoever. In the four years that I have been working for you, I have always been confident in my ability to cope with and rise above the tasks and duties that I have been assigned. I feel that, for reasons that I am not aware of, persons within this organisation are treating me in an unfair manner, and this is causing me undue stress and grief."
- She also sent a copy of her response to Dr Russell.
67 Dr Karthigasu did not speak with her about the matter. Dr Russell however did speak with her. In her evidence she describes the meeting in this way:
"He send me the e-mail, say come and see me about this, and when I went to see him, he said why you send this to me, and I said I don't feel really happy of the situation, and he said you know that Emma and Dr Karthi got the pressure from him and he said nobody in this company been treat differently. And he said can you go and write up what you been doing with all the debtor situation and then the phone rang and he gave me the note to ask me to write the detail of debtor situation".
- She then wrote out the details, gave it to him and heard nothing more of it.
68 At this time she said that Dr Russell informed her again that her job was safe notwithstanding Ms Polsittichock's resignation.
69 The next occasion of a warning being received was just before Christmas 1995 when she went to the Maylands Christmas party and the next morning the first thing Dr Karthigasu said was: "Where were you yesterday?" He told her she was not allowed to leave without permission from him.
(Page 23)
70 In April 1996 she spoke with Dr Russell shortly before taking annual leave:
"He said you haven't been doing your job really well, and during the time that you're on holidays, at this time they all put in the administration and account altogether, he said if the place won't fall over without you, when you come back you're no longer required for that job".
- Prior to that he had not indicated any problem with her work. During her annual leave she approached the Equal Opportunity Commission and on her return she did not have her old job. A lady called Annette (Sheahan) was the Manager, including the accounts section. When she started in data entry she had no place to sit. There were three terminals and she was not a typist, a skill which was required. Dr Karthigasu tried to review her salary but after speaking with Dr Russell he said no pay cut.
71 On 23 May 1996 there was a memo setting out the administration staff multiskilling which was written by Annette Sheahan to Mrs McIntosh. It commenced:
"As you are aware all Accounts and Data Entry staff have been incorporated into one department called 'Administration' of which I am the Manager. All members of the new team are multi-skilled in all aspects of data entry, billing, receipting, debt collection and associated tasks. As a member of this team you are required to become proficient in all tasks within the Administration Department.
Having completed a grid (see attached copy) which outlines each team member and the tasks they are able to complete to a satisfactory level, it became clear that you require extensive training in data entry. I wish to focus on this area, as based on the grid, it is also clear that you have prior experience in most other administrative tasks. ..."
- The memo goes on to state Ms Sheahan's requirement that Mrs McIntosh commence a 1 pm to 9 pm shift and Mrs McIntosh's refusal to do so until August due to her inability to find a babysitter.
72 In her mind the role that she had been carrying out before was still a role to be filled and she had been replaced by Annette Sheahan.
(Page 24)
73 She gave evidence as to the searching of her bag. As this matter more particularly relates to the victimisation claim I will deal with it under that heading.
74 After her return from holidays she was depressed and could not talk to anyone. She had her lunch in the store-room. One day the girl in the store-room bought her a bunch of flowers and said she deserved "better treatment than this".
75 On 11 July 1996 she received from Ms Sheahan a minute requiring her to commence night shift. She resigned before starting on night shift.
76 In summary it is to the effect that her sister's resignation had. She said:
"I feel very happy to work with Russell Pathology at that time. I - - because I been there 4 years and things, and I understand how to do my work and all that. I'm quite happy until this thing, since my sister resign, and you know, we talk about it before and was so depressing that I had to get up in the morning and go to work in the place that you know that they don't recognise you at all. You are nobody there. And because of the way that I'd been treated by Emma and Dr Karthi, nobody want to talk to me at work, because they don't know that there might be involved with it, and nobody tell me that what I done wrong or anything that's not - - they not happy with me, they never talk to me."
- That is the effect of Mrs McIntosh's evidence-in-chief.
77 Mrs McIntosh was then extensively cross-examined.
78 She considered that she was discriminated against by the management of the company, Dr Russell, Emma Griffin and Dr Karthigasu. She thought that the case for discrimination was in the memo. Annette Sheahan did not discriminate against her. She was happy that the memos written by Annette Sheahan were simply requesting her to undertake data entry training. When asked of discriminatory events she chose as the first when Dr Russell had to tell her her job was safe because he did not tell everybody else. The words themselves were not discriminatory, but they took on a different meaning with the new contract because her job was not safe because they took away half of the job and
(Page 25)
- gave it to somebody else. Then there was the written warning from Dr Karthigasu. She knew that Belinda had to sign a new contract.
79 When Dr Russell was approached after the letter from Dr Karthigasu he said to her:
"They got the pressure from me and I can guarantee you that. Nobody in this company will be discriminated against."
80 The next point she nominated was the requirement to take further holidays because of the complaint to the EOC.
81 Mrs McIntosh nominated the pay cut as a matter of discrimination but noted that Dr Russell overruled Dr Karthigasu. She agreed that was not discrimination.
82 Mrs McIntosh was taken through her initial letter of complaint to the Tribunal dated 9 April 1996. She acknowledged that Belinda was also offered a probationary period in identical terms. Belinda's probationary period remained but her's was taken out. She conceded that after she had been to see the Equal Opportunity Commission, when things came in that she thought were important, she would photocopy them or take a copy from the computer and take it home with her. As to the memo from Emma Griffin of 22 November 1995, she did not point to anything discriminatory within it but considered that it was a matter which should have been spoken about with her. She did not think it was reasonable for Ms Griffin to raise with Dr Karthigasu the second of the two matters, namely:
"… Nid's direct refusal to carry out a task as requested by me. Nid has a clear understanding of the lines of authority in this company and yet she has directly contravened my request to take the call."
83 She was questioned about the requirement in relation to debtors and acknowledged that the majority of accounts were with Medicare and Veterans' Affairs. They would mostly pay within 21 or 30 days. She acknowledged that in her letter of complaint where she wrote:
"There is also anecdotal evidence of many incidents similar to the one involving myself having occurred when no similar action has been taken against any employee."
(Page 26)
- she was referring only to an incident which she had described in evidence involving Belinda Ford, where Belinda was not given a written warning following a complaint.
84 She was cross-examined regarding the statement in her letter of complaint as follows:
"June 14. Dr Russell sent an e-mail to me inferring that I did not understand my job (see attachment E). I asked Emma Griffin, (Executive Assistant to the General Manager) if the company was 'trying to sack me'. Emma Griffin provided no response either way."
85 She considered that the e-mail was:
"… just to indicate to me that at this time he wasn't really happy with me because the task of chasing outstanding debtors that refer to - - as accounts manager you can call any superior position but the real job is - - is only part of what I used to do."
86 She denied being thinned skinned or having heightened feelings in relation to her interpretation of the e-mail.
87 She was cross-examined about an occasion on 18 October where:
"Emma Griffin threatened me with what she described as 'permanent holidays' over an extremely trivial incident entirely unrelated to the company."
- She denied that it was a joke occasion and that she herself had made a joke about it.
88 As to the next incident when she was informed in an aggressive manner that she was to attend to the telephone duties of Belinda Ford she found that "offensive a bit on the day". It was a contribution to unhappiness in the place.
89 She acknowledged that she had the feeling from March 1996 that they may not have wanted her around any longer. She acknowledged that by 24 November 1995 she knew that Emma was her superior. She acknowledged that a number of people were going to be required to do different shifts and that when she received a memo about data entry she wrote: "I am not a typist", signed it, and handed it back.
90 She acknowledged that it became clear that the majority of data entry work without too much interruption would be in the 1 pm to 9 pm shift,
(Page 27)
- which Annette Sheahan asked Mrs McIntosh to work. When Mrs McIntosh said her husband was away, they did not sack her although they put a lot of pressure on her to find a babysitter.
91 She acknowledged that she did not see the memo of 23 May 1996 as discriminatory.
92 She acknowledged that multiskilling had been introduced into the company before 4 April 1996 and that in consequence of the decision to multiskill everyone, those people who did not understand how to do her job would learn how to do her job and she would learn how to do their job.
93 She was cross-examined about her statement that her treatment was harsh and reactionary to some extent when there had been a perceived break in protocol.
94 She was taken to a breach of procedure in relation to health care concessions and she agreed that her treatment was not harsh and reactionary. She said in her evidence that she thought the company was trying to get rid of her because she might have financial information which was confidential and that her sister was then able to get that information working for a competitor.
95 She also said they were trying to get rid of her because of ill-feeling generated by certain individuals. She considered both were reasons for the discrimination, but she did not mention the question of confidential information in her letter of complaint. She said in relation to multiskilling:
"If my sister hasn't resigned when they put me in multi-skilling they will at least include me in the team that working. Okay, I don't have the data entry experience, that's a thing that I will have to learn, but at least I will know where the accounting going, at least I will know that all the meeting and who will take charge of which department at that time. All alternative work that will happen with the multi-skilling, they should include me in this".
96 She said that the specific conduct by Dr Russell, Dr Karthigasu and Emma Griffin would not have occurred if her sister had not resigned.
(Page 28)
97 She said that multiskilling and the restructuring both commenced in March 1996. She denied that the contracts to be signed in May 1995 were the beginning towards the move towards restructuring.
98 She acknowledged having a conversation with Dr Karthigasu at the time when she resigned in which she said that while she accepted the concept of restructuring and the subsequent retraining in data entry, she was not a typist and felt she could not attain the speed and accuracy required for the position. Hence this would bring stress and she would rather resign. She also wanted to see her family in Thailand because she had not visited them for seven years. She acknowledged the help and kindness the staff had given her and felt no ill-will in her feelings towards people at Russell Pathology.
99 Ms Polsittichock gave evidence concerning her employment with Russell Pathology, the circumstances of her resignation and the conflict she had with one Sonya Davies as a result of which she wrote a letter to Dr Russell for which she received assistance from Mr McIntosh. Dr Russell asked her to leave early and paid her out and subsequently wrote to her for the return of a slide.
100 She noticed that Mrs McIntosh's personality changed towards the end of 1995. She seemed to be distressed and tight on her budget and lost a lot of weight. She acknowledged in cross-examination that she was more favourably treated than the other screeners.
101 The next witness was James Allen McIntosh, who had been married to the Mrs McIntosh for 18 years. He was a full time student. He described his wife's personality as "fairly effervescent and happy natured". He acknowledged that he wrote a written response for Ms Polsittichock's letter following the incident with Sonya Davies. He recalled being told by his wife that she was told by Dr Russell her job was safe.
102 Following the incident in relation to Mrs Fowler's complaint, she became more morose, less happy in herself, less pleased about the prospect of going to work. After November 1995 she began to look for other work in earnest. In March 1996, Mr McIntosh went overseas for what was proposed to be a six month trip. Contact between them increased as she began relating things that she considered to be discriminatory and felt that she was being victimised. She had very little success in trying to find another position. She had been for several interviews. Immediately after she resigned she became a lot happier, but
(Page 29)
- there were still bad memories that did not go away. She expressed bewilderment and bitterness and was quite angry about what had happened to her. She could not understand why she could have been singled out and treated like this. In cross-examination Mr McIntosh said that the letter of complaint had been drafted by him and the first draft had been done in November 1995. He was absent in April 1996 when the letter was submitted. He said the letter was a document that was prepared by him to articulate the thoughts and feelings of his wife as she passed them on to him. He described his feelings as not very angry or furious, but increasingly worried and disturbed. He acknowledged that his wife mentioned multiskilling from time to time, but it was not something he dwelt on. He said that basically his wife took the view early in the piece that her treatment was to do with Ms Polsittichock's departure.
103 He said it struck him that rather than being multiskilled, his wife appeared to being de-skilled.
104 The next witness was Michael John Fitzgerald. He gave evidence that in January 1993, Dr Russell offered him the position of an Assistant Accountant in the accounts section of Russell Pathology based at the Maylands office. The Senior Accountant was Mr Woolley, who was in private practice, and would come in as a consultant during the week. Mr Fitzgerald attended to monthly accounts and payroll functions. He was never presented with a contract of employment to sign or issued with a formal job description or list of duties, but he was provided with a list of duties attended to by Ray Woolley as a guide. Nid McIntosh was already employed in the accounts section as Office Manager and she looked after a number of aspects of the business, including incoming cash flow payments, supplies, Medicare receipts and debtors functions. Mrs McIntosh was responsible for supervising Belinda Ford and Dr Russell's mother. Betty Flynn was an assistant to Dr Russell, but did not have any direct involvement with Mr Fitzgerald's position or Mrs McIntosh's position. In cross-examination he said that Dr Russell treated him fairly and by and large he saw no indications of him treating any member of the staff unfairly or discriminating against them. Dr Russell was very much a hands-on type of person. Mr Fitzgerald, who is now an accountant working in Kent, answered the following question:
"If an employer restructures the internal workings of his business so as to introduce the concept of multi-skilling so that everybody knows how to do every other person's job in the clerical areas of the administration, would you then expect that the people who would previously not have done data entry work
(Page 30)
- might be requested to learn data entry work?---Absolutely correct. That is one of the principle precepts of multi-skilling, as you point out. The only difference is that it's a question of degree and the time spent learning and understanding what is required in terms of data entry."
105 Mr Raymond Arthur Woolley gave evidence that he is a Chartered Accountant who commenced work with Russell Pathology as Financial Controller in March 1989, working as an employee until May 1992, following which he started his own practice but contracted to Dr Russell until March 1993. Mrs McIntosh commenced in March 1992 as Office Manager, a senior position within the company, to look after the office staff, the function of billing the debtors and to report to Mr Woolley about the results.
106 He said that if there were complaints about Mrs McIntosh's work he would expect Dr Russell to have heard of them. In cross-examination, Mr Woolley agreed that he left Russell Pathology in March 1993 and had no further association with the business or knowledge of what occurred from that time.
107 The last witness for the was Suzanne Margaret Neal, who gave evidence that her father was Laboratory Manager for Russell Pathology. Her mother did some part-time courier work for the company. Ms Neal started as a courier and went on to become a phlebotomist chiefly at the Midland collection centre.
108 In February 1993 her father resigned from Russell Pathology following which Dr Russell spoke to her:
"From what I recall, it was along the lines of what my intentions were whether I intended to stay with Russell Pathology, or what I intended to do. At the time I was about 3 months pregnant with my first child and I informed Dr Russell that I intended to stay there, I had no plans on leaving. … He advised me that my father had gone into another business, which at the time I was unaware because I wasn't living at home and we don't actually discuss what we are doing with our lives to that degree. …"
109 About two weeks later she was called into the office of Dr Russell, who told her that she had lied to him and that she was soliciting for her father's business and terminated her employment with immediate effect. She took Dr Russell to the Industrial Relations Commission for back pay. In cross-examination she acknowledged that her father had told
(Page 31)
- Dr Russell he was going for a holiday around Australia. Dr Russell had a champagne farewell lunch for him, giving him a gold watch in esteem for the loyalty her father had displayed. Four weeks later her father started a rival pathology laboratory with two other employees of the company. She agreed that she was sacked when Dr Russell received advice that she was soliciting clients for her father.
The findings open to the Tribunal on the evidence
110 The facts and findings from which inferences can be drawn in favour of the complainant's case in relation to the complaint of discrimination on the basis of family status doctrine are as set out by the Tribunal:
"(a) That Nid McIntosh was generally a well respected senior employee but soon after her sister's resignation the attitude towards her began to change;
(b) Dr Russell's computer note and the letter he wrote to [Ms Polsittichock] show that he was angered by [Ms Polsittichock's] resignation and saw implications in it for his business in regard to confidentiality this being a matter of profound concern to him;
(c) At meetings in May 1995 and on or about 24 November 1995 Dr Russell made remarks to Nid McIntosh about her job being 'safe' which indicated that her family link to Ms Polsittichock had become an issue in Dr Russell's mind;
(d) Ms McIntosh was not given any clear instruction as to how she was to cope with the restructuring;
(e) The evidence clearly established that the range of her responsibilities was gradually eroded;
(f) Criticisms of her performance were reduced to writing and most of the criticisms were either exaggerated or unjustified;
(g) Her letter of complaint dated 24 November 1995 was ignored;
(h) From mid-1995 Dr Russell failed to give close attention to the needs of Ms McIntosh."
(Page 32)
111 From these facts the Tribunal was able to infer that the change of attitude experienced by Mrs McIntosh was due to an underlying reason, namely Ms Polsittichock's resignation and her employment with a rival firm.
112 It is said that the inference is corroborated by Dr Russell's trenchant memo dated 20 May 1996 in which he noted that Mrs McIntosh got her job originally because her sister "worked here" and went on to canvass the possibility of an investigation into the accounts.
113 The Tribunal was also satisfied that Mrs McIntosh was treated less favourably than other employees in the accounts section and that from mid-1995 onwards, as a consequence of her sister's resignation, Mrs McIntosh was treated in a progressively unfriendly manner, and unlike other members of the staff, she was criticised in writing. Finally, the hostility shown towards her by Dr Russell and those senior members of the staff reporting to him, amounted to a detriment within the meaning of the statutory provision. Therefore the Tribunal was satisfied, on the balance of probabilities, that Mrs McIntosh was discriminated against on the ground of family status in the manner alleged in the points of claim filed on her behalf. The discrimination was a substantial reason behind the events complained of and sufficient to ground a basis for relief.
114 The Tribunal formed an unfavourable view as to the credibility of Dr Russell and concluded that his views were reflected in the actions of the management group.
115 There is no doubt as to Mrs McIntosh's general unhappiness during her final year at Russell Laboratory. There were essentially two alternative reasons advanced by the parties as to the cause of this unhappiness. The case for Mrs McIntosh was that her treatment was causally linked to the discrimination because of her sister. Russell Pathology's case was that her unhappiness was caused by the changes in the management of Russell Pathology in its move to multiskilling and her inability to handle aspects of the new requirements.
116 There was a considerable body of evidence in support of the latter contention as indeed the Tribunal noted. Furthermore, a lot of this evidence was not referred to in detail or at all by the Tribunal when it came to weigh the competing considerations. Dr Karthigasu's evidence was in substantial aspects not contradicted. The Tribunal referred, in its reasoning process to support the claim for discrimination, to documents prepared by Mrs Flynn, although she had left Russell Pathology before
(Page 33)
- Ms Polsittichock resigned. Their comments about the dislike of Mrs McIntosh by Annette Sheahan did not seem to fit with Mrs McIntosh's own evidence, including the fact that she did not consider Ms Sheahan did discriminate against her.
117 Ms Sheahan gave evidence that personally she had no issue with Mrs McIntosh and no problems. Ms Sheahan gave evidence that she was never told to treat Mrs McIntosh differently or less favourably than anyone else. She gave evidence that she did not know the reason why Ms Polsittichock had resigned and did not link filling out the appraisal form on Mrs McIntosh with the resignation. Ms Walker also gave evidence that there was no direction from Dr Karthigasu, Emma Griffin or Dr Russell to treat Mrs McIntosh less favourably.
Conclusion on family discrimination claim
118 As I have previously stated, in order to enliven this Court's jurisdiction to allow an appeal, an appellant must point to an error of law.
119 In this case the Tribunal has reached views on questions of credibility. It has exposed the process of reasoning by which an inference of discrimination has been made. That reasoning process depends to a large extent on the acceptance of the evidence of Mrs McIntosh despite concessions made by her in the course of cross-examination.
120 It also depends on the rejection of the evidence called by Russell Pathology, particularly that of Dr Russell.
121 His evidence was rejected in part because of the nature and tone of a number of contemporaneous documents he had written.
122 For example, while under cross-examination he swore that at no stage did he contemplate or attempt to get rid of Mrs McIntosh. This is at odds with an e-mail sent by him to Emma Griffin on 20 May 1996. That e-mail included the following:
"1. Longstanding complaints from RJR re debtors and supervision of any other staff.
2. Got her job originally because her sister worked here and Sonya (on Teerawan's advice and a personal meeting) recommended NID.
(Page 34)
- 3. We have been very generous and she has continued in her job despite:
a) complaints from patients that they phone and cannot get resolution of their problems.
b) complaints from doctors that their receptioniss [sic] in trying to resolve their patients complaints cannot get any sense out of NID
c) compalints [sic] from other staff:
i) junior office staff
ii) senior staff (Betty, RJR)
5. Nid continues to be afiscal [sic] while underperforming and crowing about unequla [sic] opportunity. All other staff receive the same degree of freedom to perform their tasks and excel, she is almost unique in not achieving any suitable targets.
6. Shwe [sic] cannot explain her job to RJR, nor give anything like a sensible report on her activities.
7. Telephone records suggest she does not make many contacts per day anyway and we have for some time wondered what she actually does all day.
8. She has changed written protocols designed to limit the possibility of fraudulent activities (stealing) with no explanation and no discussion with RJR who put these protocols in place with NID.
9. We need to find the written protocol re discounting and procedures put inplace [sic] for two validations of the discount process etc. Especially the bit about the need to sight a HCC eetc [sic].
10. I am tracking KD re instant dismissal. I could be talked into an investigation of the accounts and the possibility of missing money.
(Page 35)
- 11. Simone can give me a listing of discounts without / with appropriate comments and who the two validators were ….. doing this anyway
12. Have we reviewed the monthly (? weekly) discount reports recently?
more to follow … probably!
Rjr"
123 The reference to KD is a reference to a solicitor at Clayton Utz who acts for Dr Russell. The e-mail supports the view that Dr Russell saw himself locked in battle with Mrs McIntosh.
124 I cite this e-mail as no more than an example as to why it was open for the Tribunal to reject the evidence of Dr Russell who was the controlling mind of Russell Pathology. The burden of Dr Russell's evidence of course was that there had been no discrimination by either he or his staff.
125 Within the evidence of Mrs McIntosh are facts available to support the inference of discrimination notwithstanding the existence of a substantial body of other facts to which reference was not made by the Tribunal.
126 I am therefore unable to conclude that the Tribunal has fallen into legal error in determining that the family status of Mrs McIntosh was a causative factor in the way in which she was treated over the period. Consequently this appeal fails on grounds 1 and 2.
Appeal ground 3: statutory interpretation
127 The Equal Opportunity Act Part A is entitled "Discrimination on the Ground of Family Responsibility or Family Status".
128 Discrimination is defined as follows:
"35A. (1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of family responsibility or family status if, on the ground of -
(Page 36)
- (a) the family responsibility or family status of the aggrieved person;
(b) a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c) a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
- the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2) For the purposes of this Act, a person (in this subsection referred to as 'the discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a) with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."
"35B. (1) It is unlawful for an employer to discriminate against a person on the ground of the person's family responsibility or family status -
(a) in the arrangements made for the purpose of determining who should be offered employment; or
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- (b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
- (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibility or family status -
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in subsection (1) renders it unlawful for a person to discriminate against another person, on the ground of the other person's family responsibility or family status, in connection with employment to perform domestic duties within a private household in which the employer resides.
(4) Nothing in this section renders it unlawful for a person to do an act a purpose of which is to afford persons with a particular family responsibility or family status rights, benefits or privileges in connection with that family responsibility or family status."
130 Section 5 controls s 35B and provides that a reference to the doing of an act on the ground of a particular matter includes a reference to the doing of an act on the ground of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
131 In essence, Mrs McIntosh complains that she was unlawfully discriminated against on the ground of her family status, namely her relationship with Ms Polsittichock.
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132 Counsel for Russell Pathology submitted that s 35A and s 35B could not apply to the relationship. It is submitted that the sections were intended to be confined for the protection of people who are discriminated against because they had the care of or, or responsibility for another person who is directly or indirectly related to them.
133 I am unable to accept this submission. The Equal Opportunity Act s 4 defines "family responsibility or family status" as follows:
"(a) having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment;
(b) the status of being a particular relative; or
(c) the status of being a relative of a particular person;"
134 There is no warrant to read the expression "the status of being a relative of a particular person" narrowly and confined to "responsibility". The first part of the definition may be achieved by some person who is not a relative as defined. In such a case, responsibility is a necessary requirement.
135 The definition of "relative" is defined as follows:
"'relative', in relation to a person, means a person who is related to the first-mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first-mentioned person;"
136 While the definition includes dependency, and may be seen in counterpoise to family responsibility, the definition is not limited to such a relationship.
137 The approach to the proper construction of the Equal Opportunity Act is set out by the High Court in IW v The City of Perth (1997) 71 ALJR 943 per Brennan CJ and McHugh J at 947.
138 Although the Tribunal supported its reasoning on this point by reference to the Second Reading Speech in Hansard on 24 September 1992, I do not find it necessary to resort to an extrinsic aid to the interpretation of the section.
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139 In my opinion the words chosen in the definition and in the substantive sections do not allow for the restrictive interpretation contended by Russell Pathology and this ground of appeal fails.
Appeal ground 4: Claim for victimisation
140 The Equal Opportunity Act Part V makes victimisation unlawful. Section 67(1) provides:
"It is unlawful for a person (in this section referred to as the 'victimizer') to subject, or threaten to subject, another person (in this subsection referred to as the 'person victimized') to any detriment on the ground that the person victimized-
(a) has made, or proposes to make, a complaint under this Act;
(b) has brought, or proposes to bring, proceedings against the victimizer or any other person under this Act; …"
141 Before the Commission Mrs McIntosh's claim for victimisation was as follows:
"11. On 9 April 1996, the Complainant lodged with the Equal Opportunity Commission a complaint of unlawful discrimination on the ground of family status in the area of employment against the Respondent.
12. By letter dated 10 May 1996, the Equal Opportunity Commission advised the Respondent that a complaint alleging unlawful discrimination had been lodged by the Complainant against the Respondent.
13. The Respondent has subjected the Complainant to detriment in her employment with the Respondent on the ground that the Complainant lodged a complaint with the Equal Opportunity Commission, as referred to in paragraph 11 above, contrary to s.67 of the Equal Opportunity Act 1984.
Particulars
(a) On 30 May 1996, the Complainant was called into Dr Karthigasu's office to answer allegations that she was hiding confidential information belonging
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- to the Respondent in her hand bag. Dr Karthigasu searched the Complainant's handbag but found no such material.
- (b) On 10 June 1996, the Complainant arrived at work to find her computer menu 'wiped'. When the Complainant asked for a replacement menu, she was provided with a menu which was suited only to basic clerical tasks and not the Complainant's normal duties.
(c) On 11 June 1996, Dr Russell informed the Complainant that because of her complaint with the Equal Opportunity Commission it would be better if she took 2 weeks annual leave, commencing immediately.
(d) On 11 July 1996, the Complainant was advised in writing by her supervisor, Ms Annette Sheahan, that the Complainant was to commence the evening shift from 15 July 1996. At no stage prior to receiving this advice was the Complainant informed or consulted about the requirements of the evening shift position"
142 The claim for victimisation was denied.
The Tribunal's finding
143 The Tribunal noted correctly that the concept of victimisation carries with it the notion of an intention to cause detrimental consequences. The Tribunal also noted that its findings in regard to victimisation should be regarded as independent of its finding in relation to the family status issue.
144 The Tribunal held as follows:
"The Tribunal's findings against the Respondent concerning the family status complaint have a bearing upon the victimisation plea because these earlier findings reveal the presence of an underlying animosity harboured by the employer against Nid McIntosh as a result of Teerawan's resignation and her subsequent employment by a rival firm. To this must be added the angry response to the Equal Opportunity complaint reflected in Dr Russell's memo dated 20 May 1996 and his concessions
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- under cross examination that he saw himself as being 'locked in battle' with the Complainant from that point on. The Tribunal has already noted that the pervasive atmosphere of ill-will at the workplace directed towards Nid McIntosh referred to earlier amounted to a detriment. This detriment was exacerbated by Dr Russell's requirement on 11 June 1996 that Nid take two weeks leave and the other matters comprising the victimisation plea. The Tribunal is satisfied that the events complained of in the Points of Claim were a consequence of Dr Russell's angry frame of mind with the result that the claim of victimisation has also been made out as pleaded.
… In this case the events comprising the victimisation plea represented a new and additionally unpleasant phase of the relationship between the parties which flowed from the Complainant's assertion of her rights."
The ground of appeal: Victimisation
145 From this finding the appellant appeals as follows:
"As to the finding of victimisation
- 4. The Tribunal erred in law in finding that the Appellant had victimised the Respondent as a result of her complaint to the Equal Opportunity Commission.
(i) There was no direct evidence to support a finding, as required by the Equal Opportunity Act, that victimisation was a dominant or substantial reason for the events set out in paragraph 13 of the Points of Claim;
(ii) The Tribunal failed to make any findings of fact in relation to the events set out in paragraph 13 of the Points of Claim other than to conclude that those events 'were a consequence of Dr Russell's angry frame of mind with the result that the claim of victimisation has also been made out as pleaded';
(iii) Notwithstanding the absence of any direct evidence that the alleged victimisation was a dominant or substantial reason for the events set
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- out in paragraph 13 of the Points of Claim, the Tribunal drew inferences of victimisation which were not open or, alternatively, could not reasonably be drawn in the light of the evidence of both the Respondent and the Appellant's witnesses as to each of those events;
- (iv) In the alternative to (iii) above, the Tribunal failed to have regard to or give any weight to the Respondent's evidence and the evidence of the Appellant's witnesses which provided an innocent explanation for the Appellant's conduct in respect of each of those events."
146 Because the Tribunal held that each particular of victimisation was made out it is necessary to examine the evidence as to each one.
Particular 13(a): The search of the complainant's handbag
147 As the evidence developed, this was, to say the least, a disingenuous plea. In evidence called on behalf of Russell Pathology, Ms Walker gave the following evidence:
"On the 30th of May 1996 something happened in respect of - - which resulted in her bag being looked at. Tell us what happened there?---I was sitting in the data entry office doing data entry … I saw Nid go to the printer and take off a printout. She brought it to my desk and took my calculator from my top drawer and did a calculation of some sort. I had a quick glance at what it was. She then placed it in her handbag which was in the accounts office.
What did it appear to be?---A summary of outstanding accounts. I then went to the offence to verify what I had seen and was either on the computer or stuffing envelopes. Nid's bag was open and I glanced over and saw the accounts listing sitting there. ..."
148 Dr Karthigasu was informed and Mrs McIntosh was told of the allegation. She and Ms Walker then went to bring the bag to Dr Karthigasu:
"… When she picked her bag up she took a bundle of envelopes and the listing out and said that he didn't need to see those, they
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- were private documents. They were put in the top drawer and the bag was taken to Dr Karthi's office."
149 Ms Walker was not challenged in cross-examination as to the account just set out. The only cross-examination was the following:
"Now, in relation to the bag incident, Nid didn't appear to hide it from what you've said. She was there in the office, she borrowed your calculator, she didn't appear to be hiding anything from you; would you agree with that?---Mm hm.
Did you only speak to Emma or did you speak to Dr Russell himself about the matter?---I spoke to Emma.
Do you know whether Emma spoke to Dr Russell?---I don't know - - for sure know. I believe she did.
Okay. And you were then asked to speak to Dr - -?---Karthigasu.
Yes. That was by Emma, was it?---Yes."
150 The sequence of events outlined by Ms Walker gives no scope for an allegation of victimisation by Dr Russell or by Russell Pathology. The handbag searching was initiated by Dr Karthigasu as a direct result of Ms Walker's observations and subsequent reportage of them. There is no causal link between that event and the lodging of the Equal Opportunity complaint.
151 Furthermore, the allegation was in fact true.
152 In the new contract of employment dated 23 May 1995 Mrs McIntosh had agreed to keep information, acquired during the course of her employment, confidential.
153 During her evidence-in-chief, Mrs McIntosh was examined about this incident and gave evidence about it as follows:
"One day in the afternoon, Dr Karthi called me in and Belinda, in his office, and said someone said I have a document, confidentiality of the company document in my bag. He want to search my bag.
… I said now what's going on? And then he told me and Belinda go and get my bag, and came back. I took a lot of
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- document with the Equal Opportunity out and put in the drawer, and went to Dr Karthi."
154 Her view of the incident was:
"I am nobody in that company by now, if they can do this. And I don't want them to see all the document that I prepared to answer about Equal Opportunity, that's - - and I show Belinda all that, and she said whatever it is, ditch it."
- I interpose to note that Ms Walker denied that she told Mrs McIntosh to "ditch it" and she was not cross-examined to the contrary.
155 In cross-examination Mrs McIntosh was pressed on the subject. She admitted that she took documents from Russell Pathology which she considered to be relevant to her claim.
156 She was asked in particular about a letter from a Dr Ireland to Dr Russell complaining about another staff member's attitude. A copy of this letter had been attached to Mrs McIntosh's letter to the Equal Opportunity Commission. Her answers were as follows:
"I was, in fact, going to ask you some questions about that. Perhaps I can continue. Firstly, the letter was directed - - addressed to Dr Russell and it dealt with something unrelated to you, didn't it?---That's right.
But you took a copy of it from the company?---Yes.
And you didn't ask Dr Russell's permission, did you?---No.
In fact, you didn't ask him for permission to take anything from the company, did you?---No.
You took debtors lists and a number of E-mails, didn't you?---Yes.
In fact, the debtors lists and the E-mails were things you removed from your bag before Dr Karthigasu looked at your bag, didn't you?---That's right.
So, when Dr Karthigasu asked you whether you had anything belonging to the company in your bag you didn't give him a straightforward and truthful answer, did you?---No.
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- Now, this letter that Dr Ireland wrote to Dr Russell was about a member of staff in the technical side and you were in the accounting side, weren't you?---Yes.
You had nothing to do with the technical side, did you?---No."
157 Where there is some evidence to support a particular, a Tribunal's reliance on that evidence, even if weak, or perhaps perverse, will not be an error of law but an error of fact.
158 In respect of this particular, there is no evidence to support the allegation and the Tribunal has erred in law in holding that there was evidence and in the inference then drawn that Mrs McIntosh had been victimised.
Particular 13(b): The wiping of the computer menu
159 The Tribunal did not refer to this particular beyond the general statement that the claim of victimisation had been made out as pleaded.
160 Mrs McIntosh did not mention this incident during her examination-in-chief.
161 She was cross-examined about the incident and acknowledged that it occurred some 10 or 11 days after the handbag incident. She did not agree with the proposition:
"… Dr Russell had the balancing act, didn't he, of keeping you working, giving you work to do in the company, but being mindful of the fact that you had exhibited a desire to take the company's documents away. So, he had to balance that, didn't he?"
162 Dr Russell gave evidence that the replacement of her computer menu was on his instructions based on his concern that he no longer trusted her with confidential material. He said:
"My concerns were that I had a story from Belinda Ford which didn't fit with Nid's response to Dr Karthigasu; and I chose to believe Belinda Ford, because if I didn't choose that, then I would be possibly making a mistake. If I did choose that, then there was no further damage could be done to the business."
163 There was no evidence by which it could be concluded that the substantial reason for restricting Mrs McIntosh's access to computer
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- information was victimisation. The only evidence was that of Dr Russell to the contrary. Even if his general credit as a witness was impugned, it is impermissible reasoning to reject his explanation and therefore draw a positive inference in favour of victimisation.
164 In any event, the reallocation of computer programs to restrict Mrs McIntosh's access to certain programs cannot in the circumstances, amount to a detriment to her.
165 "Detriment" is defined by the "Macquarie Dictionary" as "loss damage or injury".
166 "Injury" is harm of any kind done or sustained or a wrong or injustice suffered.
167 Clearly "injury" can take many forms and is not limited to physical harm. Psychological damage may amount to an injury.
168 An injustice or wrong may amount to an injury especially if deliberately inflicted in order to victimise the person. In O'Callaghan v Loder (1983) 3 NSWLR 89, Mathews DCJ, after discussing the English decision in Ministry of Defence v Jeremiah [1980] QB 87 said at 105:
"… I consider that we should adopt the meaning ascribed to the word 'detriment' by Brandon LJ, and treat it as requiring that a complainant has been placed under a disadvantage in comparison with employees of the opposite sex.
The disadvantage must be a matter of substance; the legislation is not directed to trivial distinctions in the treatment afforded to men and women."
169 Her Honour noted that essentially, it is a matter of fact to be determined in each individual case.
170 With respect, I agree that the disadvantage must be a matter of substance. Even if there was evidence of disadvantage to Mrs McIntosh from restricted access to computer programs, I would not regard such disadvantage as a detriment.
171 In this case Mrs McIntosh gave no evidence of any injury, loss or damage which she suffered as a result of the restricted access to the computer menu.
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172 The evidence of Dr Russell, if accepted on this point, does not lead to the conclusion that the decision to restrict access was an injustice. There were reasonable grounds to suspect Mrs McIntosh of a breach of confidentiality as outlined previously. Consequently, I conclude that the Tribunal also erred in upholding this particular.
Particular 13(c): The taking of two weeks annual leave
173 Mrs McIntosh gave evidence about this incident, that in June she was called into Dr Russell's office, where he told her that normally:
"… we don't grant annual leave too easy but, because of your complaint to the Commission … if you have still got holidays left, you had better take the further annual leave."
174 She did not want to take annual leave at that time because she had just come back from holidays. Nevertheless, construing the term "detriment" broadly in relation to loss, damage or injury, I do not consider the restriction of the computer programs in the circumstances can amount to a detriment. In order to trigger the victimisation provisions, there must be some ascertainable loss, damage or injury.
175 In cross-examination she denied that she tried to engage her colleagues in conversation to elicit support for her position.
176 The requirement to take paid annual leave at a time not of the person's choosing, may be considered a detriment in some circumstances. The Tribunal does not appear to have concluded that the taking of leave itself was a detriment. Rather, it was said to have exacerbated the pervasive atmosphere of ill-will in the workplace.
177 In circumstances where there was ill-will in the workplace which was obviously affecting an employee, more would be needed in the way of facts to draw an inference that the dominant or substantial reason to place the employee on paid leave was to victimise the employee.
Particular 13(d): Evening shift
178 Mrs McIntosh gave evidence that when she returned from leave, she was given an internal memorandum dated 11 July 1996, which commenced:
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- "With reference to your advice that you are able to commence the night shift in the administration department on 15 July 1996 please observe the following: …"
- There followed a list of duties. She felt that she needed someone to show her and she resigned. She said she did not want to go on night shift, as they had been threatening, when her husband was back.
179 The night shift commenced at 1 pm and went to 9 pm. In cross-examination she noted that she was slow in data entry and that Annette Sheahan explained to her that the majority of the data entry work would be in the 1 pm to 9 pm shift, which was why she wanted Mrs McIntosh to go onto that shift.
180 Her husband was out of Perth for some time when she was first asked to go on the night shift. She advised him that he would be back in August and they waited until he came back. However, they put pressure on her to work the 1 pm to 9 pm shift and get a babysitter. However, they made no moves to dismiss her because of it.
181 This minute has to be seen in relation to other matters occurring in the company.
182 Mrs McIntosh agreed in cross-examination that certainly by 4 April 1996, multiskilling had been introduced to the company and that everybody was going to learn how to do everyone else's job and that she would have to learn other people's jobs and they would have to learn hers. She acknowledged that some people were going to be required to work a variety of shifts.
183 This had been set out in an internal memo from Annette Sheahan to Mrs McIntosh of 23 May 1996. The memo reads:
"Re: Administration Multiskilling and Data Entry Training
As you are aware, all Accounts and Data Entry staff have been incorporated into one department called 'Administration', of which I am the Manager. All members of the new team are multiskilled in all aspects of data entry, billing, receipting, debt collection and associated tasks. As a member of this team, you are required to become proficient in all tasks within the Administration Department.
Having completed a grid (see attached copy) which outlines each team member and the tasks they are able to complete to a
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- satisfactory level, it became clear that you require extensive training in data entry. I wish to focus on this area, as based on the grid, it is also clear that you have prior experience in most other administrative tasks.
In order to provide this experience, I recently requested that you work the 1pm - 9pm shift. My reasoning for this is that this shift involves the greatest amount of data entry processing, and has proven over the years to be the best training ground for staff to become proficient in data entry. You have stated that you are unable to fill this position until August due to your inability to find a baby sitter for your son. As such, it is necessary for me to ask Anita Le to fill the 1pm - 9pm shift position until August, when I expect you to take on this shift, as you agreed with Dr Karthigasu. This causes some difficulty for the Department, as it will impede on the amount of quality control carried out daily, which is one of Anita's current tasks. It also considerably slows my ability to multiskill Anita in the more complex aspects of the accounting tasks of the Administrative Department.
I request that you provide me with the date on which you will be able to commence the 1pm - 9pm shift as soon as possible. As you would be aware, the sooner that we you [sic] can start the afternoon shift, the sooner we can resume the pace at which we were multiskilling previously, and the efficiency of the department. From previous experience, I believe you will find this shift to your benefit in terms of learning the complexities of data entry and increasing your speed and accuracy.
In the interim, I will continue to train you in data entry. To accommodate your need for day time work hours, whilst maximising the amount of data entry you have exposure to, I require you to work from 9am to 5pm, Monday to Friday, commencing Monday, 27th May 1996.
As the Administration Manager, I monitor, on a daily basis, the number of request forms data entered by each staff member. My expectation is that an operator should be able to enter a minimum of 20 forms per half hour with 98% accuracy. This level of performance should be attained after an operator has received two weeks of training, with a further four weeks of
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- hands on experience. Your statistics will be monitored, as are those of all other staff.
Should you have any questions regarding any of the matters outlined above, please raise them with me as soon as possible."
- On receipt of this document, Mrs McIntosh wrote:
"I am not a typist!!!
Regards
Nid McIntosh"
and she explained about that in her evidence.
184 Ms Sheahan gave evidence about the memo and was cross-examined. She agreed that she knew Mrs McIntosh did not have typing skills and needed typing skills to become an effective data entry person. She said she had sat down with Mrs McIntosh to discuss the minute and attached grid. She acknowledged that in her memo advising Mrs McIntosh to start on the night shift the rate of 30 requests per hour was an error and should not have been that high for an inexperienced data entry operator. This evidence as to error was later qualified. The memo of 23 May 1996 referred to 20 forms per half hour. This 30 forms per hour was in line with the earlier memo. The night shift would be the highest volume for data entry. She said this was because Mrs McIntosh required training and focus in data entry. She already had patients' account experience and she wanted her to enhance her skills and speed and her knowledge of data entry to make her multiskilled along with the other women. She also acknowledged that the memo could be read as requiring Mrs McIntosh to stay at the laboratory and complete her work beyond 9 pm.
185 The particulars pleaded in 13(d) lay stress on the fact that at no stage prior to receiving the memo of 11 July 1996 was Mrs McIntosh informed or consulted about the requirements of the evening shift position.
186 However, as outlined, her own evidence is to the contrary.
187 By May 1996 Russell Pathology had organised its administrative functions so that staff were required to be multiskilled. Shift work had for some time been part of the practice.
188 In June 1996, Annette Sheahan gave evidence that she approached Dr Russell about Mrs McIntosh's salary and was advised that her present
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- salary was to be maintained. This evidence as to Dr Russell's attitude was confirmed by Dr Karthigasu.
189 This is relevant in the context of possible victimisation as it is Annette Sheahan's evidence that she was never told by Emma Griffin, Dr Russell or Dr Karthigasu to victimise Mrs McIntosh. She was not cross-examined to suggest the contrary.
190 The Tribunal reasoned that all of the events particularised in 13 were the consequence of Dr Russell's angry frame of mind.
191 There is no direct evidence that the decision to place Mrs McIntosh on night shift was a consequence of Dr Russell's frame of mind.
192 In my opinion the evidence of Mrs McIntosh, coupled with the evidence of Ms Sheehan, does not permit the inference to be drawn.
193 Furthermore, contrary to the pleaded particulars, it is clear that Mrs McIntosh had been informed about night shift work in May.
194 In its general reasons for accepting or rejecting the evidence of particular witnesses, the Tribunal said that Dr Russell conceded that his views were reflected in the action of his senior colleagues.
195 This statement was made in weighing his credibility.
196 When considering the particulars relied upon and in this context, 13(d), the general statement cannot overcome a deficiency in primary facts.
197 There are no primary facts to draw the inference that the decision by Annette Sheahan to place Mrs McIntosh on night shift was in effect, her acting as agent for Dr Russell.
198 Dr Karthigasu gave evidence that he did not make the decision for Mrs McIntosh to move to night shift. He spoke to her about it and she raised the difficulty that her husband was away and she needed to look after her son.
Conclusion on victimisation
199 The Tribunal erred in finding that there was evidence to support the particulars set out in the points of claim.
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200 There was no direct evidence of victimisation and the inferences available to be drawn from the facts do not permit the inference of victimisation to be drawn.
201 The Tribunal has, in consequence, erred in law and the appeal on this ground is upheld.
Conclusion on appeal
202 For the reasons I have set out, this appeal should be allowed in part.
203 The Equal Opportunity Tribunal decision that Hautlieu Pty Ltd trading as Russell Pathology victimised Nidthaya McIntosh is quashed and the award of damages in the sum of $2,500 is set aside.
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