Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd - [2011] NSWADT 37

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd [2011] NSWADT 37
Hearing dates: 9, 19 and 11 March; 1, 2 and 3 June; and 9, 10 and 11 September, 2009
Decision date: 24 February 2011
Jurisdiction: Equal Opportunity Division
Before: S Rice, Judicial member
L Monaghan-Nagle Non-judicial member
L Mooney Non-judicial member
Decision:
1.The first complaint is dismissed.
2.The second complaint is dismissed.
3. Any application for costs will be filed and served within seven days of the date of publication of this decision, and any reply to such application will be filed and served within a further seven days.

Catchwords: Race discrimination; employment; victimisation; attributed liability; directors' liability
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Cases Cited: Carroll v Zielke & Ors (2002) EOC 93-177
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Murphy v David Jones Limited [2002] NSWADT 140
NSW v Amery (2006) 80 ALJR 753
O'Callaghan v Loder [1983] 3 NSWLR 89
Shellharbour Golf Club Ltd v Wheeler (1999) 46 NSWLR 253
Surti v Queensland [1993] HREOCA 3
Category: Principal judgment
Parties: Avgoulla Hendrickson (Applicant)
Yarra Bay 16 ft Skiff Sailing Club Ltd (Respondent)
Representation: S Coleman, barrister (Applicant)
Tsintilas & Associates Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 071076

Decision

For the reasons we give below, the complaints are dismissed. That means that Ms Hendrickson is unsuccessful in her application to this Tribunal.

Background

In early 2006 Yarra Bay 16 ft Skiff Sailing Club Ltd ('the Club') employed Ms Avgoulla Hendrickson as its General Manager. Ms Hendrickson is of Greek descent; her being of Greek descent is, for purposes of the Anti-Discrimination Act, her 'race'. In early 2007 her employment was terminated.

Complaints

Ms Hendrickson has made two complaints under the Anti-Discrimination Act ('the Act'). These two complaints were the subject of this inquiry.

Ms Hendrickson first complained to the Anti-Discrimination Board on 7 February 2007. She complains that the Club discriminated against her, because of her race, in the terms and conditions of her employment; Ms Hendrickson did not pursue a claim of discrimination against any individual.

By 'terms and conditions of employment' we are referring not to the strict contractual terms of employment, but more generally to the circumstances and environment of the workplace (NSW v Amery (2006) 80 ALJR 753, [67]-[68]). In summary, those circumstances and environment were, says Ms Hendrickson, that pejorative references were made to the presence of people of Greek descent at the Club, to the Greek Taverna nights that were held at the Club, and to a perception that the Club was catering for people who are of Greek descent at the expense of members who are not.

Ms Hendrickson complained to the Anti-Discrimination Board again on 11 April 2007. She complains that the Club discriminated against her, because of her race, by terminating her employment.

Liability of the Club and individuals

Ms Hendrickson alleges that certain individuals engaged in conduct, but none of those individuals was in a relationship with Ms Hendrickson that is covered by the Act. Ms Hendrickson has pursued this complaint against her employer, the Club. As her employer, the Club is the appropriate respondent to a complaint about terms and conditions of employment, and about termination of employment.

To attribute liability to the Club for the conduct of individuals Ms Hendrickson we must be satisfied that at the individuals were employees or agents of the Club and that their conduct was explicitly or implicitly not unauthorised by the Club (s53 of the Act).

None of the people against whom Ms Hendrickson makes allegations was an employee of the Club. Some were directors of the Club, and that seems to be the basis on which Ms Hendrickson is alleging that the Club is liable for their conduct, through agency.

This is not a case where a director is effectively the mind of the company (Carroll v Zielke & Ors (2002) EOC 93-177, [174] and authorities cited there). The Club is a company limited by guarantee, with members and a board of Directors. It is a separate legal entity governed by a Board with a number of directors who meet regularly to make and minute decisions regarding the conduct of the business. No single director can represent the mind of the company. For a director's conduct to be attributed to the Club, the director would need to be 'ostensibly at the time acting in the discharge of responsibilities as agent for his principal ... unless the conduct was unauthorised by the principal either expressly or by implication' (Shellharbour Golf Club Ltd v Wheeler (1999) 46 NSWLR 253), [33].

For each of the allegations made against individuals, we must decide whether they were, at the time, acting as agents in this manner. This cannot have been the case for individuals who were not directors. The question is whether the directors against whom Ms Hendrickson makes the allegations were acting, at the relevant time, as directors or as Club members in their private capacity. For each of the allegations it is necessary to know whether the members were acting as directors: whether they said they were acting as directors, whether they held themselves out as directors, or whether in the circumstances they were ostensibly acting as directors.

We note that in his evidence, Mr McDonald's uncontested view as President of the Club was that a director when 'on the club floor' is 'just an ordinary member with no special powers' and as an ordinary member was under the control of the General Manager, Ms Hendrickson.

Observations on the evidence

It has been difficult to assess the evidence. First, we have had considerable difficulty relating all the evidence presented, by both parties, to facts in issue. We describe below at [22]-[27] an approach to identifying the complaints, the allegations which constitute the complaints, and the issues to be decided. This is more than was done by or on behalf of Ms Hendrickson in the preparation, presentation and summary of her evidence; we comment on the Club's case below. As a narrative, and more particularly as an account of matters relevant to an anti-discrimination complaint, the case presented by Ms Hendrickson was chaotic. The Tribunal intervened on occasions during the hearing to try to keep the whole of the evidence that was being given, and particular evidence at the time, focussed on the facts in issue. Assessing the whole of the evidence since, it seems we were unsuccessful. The submissions on behalf of Ms Hendrickson did not assist in this attempt to focus. In this decision we have attempted to give Ms Hendrickson's case a coherence it lacked during the hearing, and to fit in the Club's case accordingly.

Secondly, in her oral evidence Ms Henderson volunteered very little to elaborate on the allegations in her complaint and affidavit. Many of those allegations are in general terms, without detail as to time, place and, sometimes, even the identity of people involved. In answers to questions asked by the Tribunal Ms Hendrickson provided some elaboration.

Thirdly, we have had considerable difficulty assessing Ms Hendrickson's evidence. In giving oral evidence Ms Hendrickson responded to questions in many different ways, and not always directly. For example, at different times she asked for clarification of the question, she answered the question with a question, she interrupted the question, she offered lengthy answers that went beyond answering the question, and she queried the status of the document to which the question related and referred to other documents that were unspecified or unavailable or differently numbered. The flow of evidence was at times very confusing, a state that was not rescued by attempts at clarification by the parties' lawyers or, it must be said, the Tribunal's own interventions. Neither the parties' submissions nor a close reading of the extensive transcript succeed in describing clearly Ms Hendrickson's evidence on many of the facts in issue. Much of the evidence she gave was not relevant to facts in issue, although it was intertwined with evidence that was. When in these reasons we record Ms Hendrickson's evidence, we have recorded the best understanding we have of what her evidence was in the circumstances.

Fourthly, Ms Hendrickson was prone to exaggeration when giving her evidence. One example relates to a period of illness. Ms Hendrickson was absent from work for 10 days, for which medical centre certificates record she was suffering 'medical illness'. Her evidence is that during that period she attended work to attend an important meeting. As well, her evidence is that at the time she was 'critically ill' and that 'I nearly died according to my doctor'. Another example relates to the occurrence of graffiti. Ms Hendrickson's oral evidence is that the graffiti appeared 'daily for six weeks'. She later altered this estimate to 30 days, an estimate another witness, Mr Callum McDonald, agrees with. Another example is an occasion of going without sleep. Ms Hendrickson's evidence is that to prepare papers for an Annual General Meeting she went without sleep for 48 hours, something she had done 'a few times'. In her evidence, she denied having had a nap, re-asserted that she was at the club for two nights in a row, and then corrected herself and said it was one night. Evidence such as this has given us reason to hesitate in accepting Ms Hendrickson's evidence generally, and in particular when there is evidence to the contrary.

We note that the Club's submission goes further than to say that Ms Hendrickson was prone to exaggeration in her evidence. The Club submits that in her evidence Ms Hendrickson 'lied compulsively', and 'was not an honest or truthful witness'. In support of this the Club cites a number of matters that were raised during the hearing, ranging from Ms Hendrickson's keeping of ordinary company records such as board minutes, to her claiming expenses and making payments. None of the matters relied on by the Club is clear cut, and the evidence relating to each matter is incomplete. None of the matters related directly to a fact in issue; many of the matters arose not in the course of an attack on Ms Hendrickson's credibility but as part of the Club's case that termination of Ms Hendrickson's employment was because of poor work performance. We are not satisfied that Ms Hendrickson lied when giving her evidence.

Fifthly, at times Ms Hendrickson's allegations and evidence concern things said and done by people who were not called to give evidence. Ms Hendrickson makes allegations against, for example, Ms Barbara Keely and un-named 'friends and relatives' of Mr O'Rourke, but those people were not called and their absence was not explained. In making some allegations Ms Hendrickson relies on what she says Mr Alan Hutcheson, the Club President for much of 2006, said and saw, but he was not called and his absence was not explained. As well, Ms Hendrickson refers in her evidence to things said and done by members and staff of the Club, such as Cheryl Longbottom, Col Jones, 'Angelo' and 'Clair', and by other people such as accountants, departmental officials and so on. Ms Hendrickson did not call the people whose conduct she referred to in her evidence or explain their absence. When Ms Hendrickson's evidence refers to things said and done by other people who were not called to give evidence, and their absence is unexplained, we infer that the uncalled evidence would not have assisted Ms Hendrickson's case (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

Sixthly, Mr McDonald's evidence was unfinished. Mr McDonald was President of the Club from late 2006, and was called by Ms Hendrickson to give evidence. His was the most extensive evidence in support of Ms Hendrickson's allegations. While being cross-examined Mr McDonald left the witness box and did not return. The circumstances were that it had been suggested to him that on a particular issue it was not possible that both he and Ms Hendrickson were telling the truth, and that either he or Ms Hendrickson was lying. Mr McDonald denied he was lying, and was then asked if it was possible that Ms Hendrickson was lying. Although the Tribunal disallowed the question that he had been asked, Mr McDonald said to the Tribunal 'Excuse me sir, do you mind if I leave this Tribunal?'. He then said 'I'm leaving', and did so. He did not return, and his absence remains unexplained. Many of Ms Hendrickson's allegations of fact were corroborated by Mr McDonald in his affidavit, or were said by Ms Hendrickson's evidence to be corroborated by Mr McDonald. To the extent that the Club did not have the opportunity to test Mr McDonald's evidence on those matters, we infer that whatever evidence he would have given would not have assisted Ms Hendrickson's case.

Seventhly, it seems likely to us that the approach Ms Hendrickson took to presenting her case affected the approach taken by the Club. It was difficult for the Club to respond to Ms Hendrickson's allegations as it was often unclear what allegations of fact she was making, against whom and, most significantly, for what purpose under the Anti-Discrimination Act. Nevertheless, many of Ms Hendrickson's more prominent and consistent allegations were not responded to, or were not the subject of cross-examination, and the Club's determination to positively establish very detailed allegations of Ms Hendrickson's poor work performance was at times at the expense of responding directly to her allegations. Very little of the Club's cross-examination of Ms Hendrickson was concerned with her allegations of race discrimination. By far the greater part of it, for most of two days, was concerned with her performance as General Manager, in support of the Club's case that her performance as General Manager was the only reason for the termination of her employment.

Eighthly, Mr Keith Longbottom's evidence was unsatisfactory. Mr Longbottom was a director of the Club at the relevant time, and he was called by the Club. Many of Ms Hendrickson's allegations of specific incidents are allegations about Mr Longbottom's conduct. Mr Longbottom's evidence was characterised by near complete denial of everything alleged by Ms Hendrickson, and a persistently stated inability to recall events. Mr Longbottom's denials and failure of memory were at times implausible, for example his saying 'I deny opposing [the] Taverna Night', in circumstances where the Minutes of meetings record that not only he but other board members were opposed to the Taverna Nights. No explanation was offered to explain the improbably high rate at which his memory failed him. When there is other evidence at odds with Mr Longbottom's denials we have given that evidence greater weight than Mr Longbottom's.

FIRST COMPLAINT: hostile work environment

In her complaint of 7 February 2007 Ms Hendrickson makes a number of allegations of fact. No amendment has since been made to the complaint.

Ms Hendrickson alleges that things were said and done by named and unnamed people so as to affect the terms and conditions of her employment to her detriment. In effect, Ms Hendrickson is alleging that the many things which were said and done created a racially hostile work environment, for which the Club is responsible.

It is the case that 'an employer can be directly responsible under the Act for the creation or tolerance of a racially hostile work environment, which itself is the product of individual acts of a racially discriminatory nature, whether or not they are committed by persons under the direct control of the respondent' (Surti v Queensland [1993] HREOCA 3). Although such an environment is likely to have been produced by 'individual acts of a racially discriminatory nature', it is not necessary that each act was in fact of that nature; it is enough that the conduct was 'racial', or 'race-based' (O'Callaghan v Loder [1983] 3 NSWLR 89; Murphy v David Jones Limited [2002] NSWADT 140). Whether or not each act itself was racially discriminatory, the relevant question is whether there was racially hostile a work environment; it is that work environment for which the employer could be liable.

The inquiry that Ms Hendrickson's complaint invites is whether there was a racially hostile work environment and, if so, whether the Club was liable under the Anti-Discrimination Act for that being so. Most of the evidence relied on by Ms Hendrickson was directed to establishing that the things she alleges were said and done actually happened - what counsel for Ms Hendrickson calls 'the actual incidents'.

It appears that Ms Hendrickson relies on the 'the actual incidents' not only as evidence of a hostile work environment, but also, for some of them, as incidents which were themselves discriminatory conduct for which the Club is responsible. Ms Hendrickson did not make clear in the proceedings the different reasons for which she gave extensive evidence of actual incidents, and we approach them as having these two purposes - as indicative of a hostile work environment, and as discriminatory acts themselves, as a concession to Ms Hendrickson.

We therefore have to decide if each alleged conduct happened as alleged. If it did, we have to decide to two things: (1) whether it alone or with other incidents produced a racially hostile work environment, and (2) whether it was itself an act of unlawful racial discrimination by the Club (because it was conduct by a person ostensibly acting as a director). If we decide that a racially hostile work environment had been created, we have to decide if the Club is liable for that.

Incidents alleged

The Taverna allegation

Ms Hendrickson was aware that the Club was struggling financially. She believed that there was a prospective market for the Club in the nearby Greek community. During 2006 Ms Hendrickson promoted the Club's facilities to the Greek community, principally though running a 'Greek Taverna' night every Saturday night, and attracting bookings from the Greek community for events.

In her complaint, Ms Hendrickson alleges that:

Keith Longbottom and Barbara Keely were always making remarks about Australian Greeks visiting the Club, insinuating that their club was turning into a Greek Club. They said we should not have the Greek Taverna on Saturday nights. Keith Longbottom always spoke out and acted to have the Taverna cancelled as he thought we should have no Greek music there at all.

...

Keith Longbottom has continually complained and made divisive comments to other members about not having the Greek Nights ...

In her principal affidavit Ms Hendrickson provides further particulars of the Taverna allegation, recounting a conversation she says she had with Mr Longbottom and comments she says she heard Mr Longbottom and Ms Keely make.

In her affidavit Ms Hendrickson makes a separate allegation which was not in her original complaint. It appears that she relies on it as further evidence in support of her complaint. As it relates to the conduct of the Greek Taverna we recount it here. Ms Hendrickson alleges that in January 2007 Mr Longbottom, Mr William O'Rourke and Mr Lindsay Sadgrove directed Ms Hendrickson to cancel the scheduled Greek Tavern night on a particular Saturday so that a member could have her function on that night, saying that 'locals have priority over Greeks'.

Ms Hendrickson was cross-examined about the Taverna allegation. Her attention was drawn to the fact that the minutes for the meeting where the matter was dealt with record that Mr Longbottom opposed continuing with the Greek Taverna nights because he believed they were not successful. Ms Hendrickson's response was that she did not believe this to have been Mr Longbottom's 'true thoughts' because the Greek Taverna nights were successful. Ms Hendrickson's attention was drawn to the fact that the same minutes show that the Board, including Mr Longbottom, supported the continuation of the Greek Taverna nights but on a monthly rather than fortnightly basis. Her response was that Mr Longbottom did not in fact support the Greek Taverna nights and that the minutes do not accurately record what was said. She acknowledged that she recorded the minutes.

In re-examination Ms Hendrickson was asked to elaborate only on what she says Mr Longbottom said in opposing the Greek Taverna nights. Her evidence was that 'he [Keith Longbottom] actually referred to it as 'mumbo jumbo wog music' and why should it be on when he couldn't understand and that's one of his reasons why he didn't want it to continue'.

Mr McDonald was called by Ms Hendrickson to give evidence. Mr McDonald was a member of the Club, and in October 2006 became Chairman of the Board. In relation to the Taverna allegation Mr McDonald in his affidavit recounts comments he says he heard Mr Longbottom, Mr O'Rourke and Mr Sadgrove make, at unspecified times.

Ms Keely was not called by either party to give evidence.

Mr Longbottom, a director of the Club, was called by the Club to give evidence In relation to the Taverna allegation Mr Longbottom agrees that he thought that the Taverna nights were not a success. He denies having said the words or having the conversations alleged against him.

Mr Sadgrove, a director of the Club, was called by the Club to give evidence. Mr Sadgrove denies Ms Hendrickson's allegations as to what he said, and denies that the comments attributed to Mr Longbottom and Mr O'Rourke were said in his presence.

Mr O'Rourke, a director of the Club, was called by the Club to give evidence. In relation to the Taverna allegation Mr O'Rourke denies Ms Hendrickson's allegations as to what he said, and denies the conversations he is alleged to have had with Mr Longbottom. He denies being opposed the Taverna nights and says that he regularly listened to the Greek music and had said to members that 'it's bringing in money'.

Mr Bradley Owen, a director of the Club, was called by the Club to give evidence. In relation to the Taverna allegation Mr Owen in his affidavit said only that the Board's decision to cancel the Taverna nights was because they were unprofitable, and denied that the decision was related to Ms Hendrickson's race. When cross-examined he repeated this view.

Ms Virginia Apps, an employee of the Club was called by the Club to give evidence. In her affidavit Ms Apps said nothing of significant probative value in relation to the Taverna allegation: she heard some members complain about the Taverna nights, and she did not hear anyone say what Ms Hendrickson says was said to or about her (Ms Hendrickson).

Cross-examination of the witnesses called to give evidence for the Club did not elicit any concessions to their denials of the conduct alleged against them.

The evidence is not complete, and is conflicting. In the absence of her having given evidence or her absence being explained, we cannot make a finding about anything Ms Keely is alleged to have said or done. We are not satisfied that Mr Longbottom made pejorative comments about 'Greeks'. We are satisfied that he did oppose the Greek Taverna nights, and that a reason for his being opposed was their unprofitability.

Having regard to the considerations we set out above in [11] and the absence of any evidence suggesting otherwise, we are not satisfied that in relation to the alleged conduct, Mr Longbottom, Mr O'Rourke and Mr Sadgrove were acting as agents of the Club rather than as Club members in their private capacity. Further, we are not satisfied that a reason for their being opposed to the Greek Taverna nights was that Ms Hendrickson is Greek. In our view the Greek Taverna nights would have been opposed by the members in the same circumstances regardless of the race of the General Manager. There is no necessary nexus between the race of the General Manager and the ethnic focus of the proposed event - it was a Greek Taverna Night because there was a potential market among the Greek community. Similarly if Mr Longbottom, Mr O'Rourke and Mr Sadgrove wanted to cancel a Taverna Night because they believed that 'locals have priority over Greeks', we are not satisfied that a reason for their wanting to cancel the Taverna Night was that Ms Hendrickson is Greek; in our view they would have sought the cancellation regardless of the race of the General Manager.

As an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint, the Taverna allegation, is dismissed.

To the extent that Ms Hendrickson relies on the Taverna allegation as an incident which indicates the existence of a racially hostile work environment, we address that larger question below at [126]-[134] and following.

The first Bar supervisor allegation

In her complaint Ms Hendrickson alleges that:

At one Board meeting where [sic] I introduced two potential Bar Supervisors to the Board for selection. Comments made by Keith [Longbottom] and Barbara [Keely] were that I should not hire one individual because he was of Greek decent [sic] ... Keith and Barbara wanted it noted that they were not in agreement with the choice the Australia born applicant of Greek decent and Barbara Keely stated that we should be hiring only Kooris.

In her principal affidavit Ms Hendrickson recounts comments she says she heard Mr Longbottom and Ms Keely make at a Board meeting. She alleges that 'at a meeting on or around April 19, 2006' Mr Longbottom said the Club should not hire a staff member 'because he's Greek', and that at the same meeting Ms Keely said that 'we should be hiring Kooris instead'.

Ms Hendrickson was cross-examined about the first Bar Supervisor allegation. She denied that she had exaggerated or misstated what had occurred. Her attention was drawn to the fact that the minutes for the meeting where the matter was dealt with, which she produced to the inquiry, do not record Mr Longbottom's having taken any objection to the staff appointment. Ms Hendrickson's response was two-fold.

First, she said that the then chairman Mr Hutchison had asked her to remove references to what Mr Longbottom had said because they would 'reflect badly on the club'. In her affidavit she had said 'I recall that Alan Hutcheson ... supported my view ... and said 'we should be looking at the candidates' abilities and not their race ...'. Secondly, Ms Hendrickson described the minutes as a 'condensed' version, and said that 'the full copy of these minutes is at the Club'. No other copy of the minutes was produced.

Ms Hendrickson did not call Mr Hutcheson to give evidence or explain his absence. Neither party called Ms Keely to give evidence. In the absence of her having given evidence or her absence being explained, we cannot make a finding about anything Ms Keely is alleged to have said or done.

Mr Longbottom denies saying the words Ms Hendrickson alleges against him.

The evidence is far from complete, and is conflicting. We are not satisfied that Mr Longbottom said that he opposed the hiring because the person was of Greek descent. In any event Ms Hendrickson is not able to allege this as an incident of racial discrimination by the Club because it is not conduct directed towards her.

To the extent that Ms Hendrickson relies on this as an incident which indicates the existence of a racially hostile work environment, we address that larger question below at [126]-[134] and following.

The second Bar supervisor allegation

At the Board meeting on 24 July the Board decided against appointing a potential caterer. In her complaint, Ms Hendrickson alleges that:

Following the Board meeting ... Linda Ross told me that they [the Board] would not choose one of the two short-listed candidates because they were Australian of Greek decent [sic].

Ms Hendrickson repeated this allegation in her affidavit. No other evidence was led in relation to this allegation. Neither party called Ms Ross to give evidence. We are not satisfied that Ms Ross made the comment alleged.

Accordingly, as an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint is dismissed. Because we are not satisfied that Ms Ross made the comment alleged, Ms Hendrickson cannot rely on it as an incident which indicates the existence of a racially hostile work environment.

The News Year's Eve allegation

In relation to News Year's Eve 2006/7, when the Club held both a beach Dance party and a Greek/Australian night, Ms Hendrickson alleges that:

Keith Longbottom, William O'Rourke and Barbara Keely made the inference [sic] to members that I was disadvantaging members by sending them downstairs to what they said was an inferior venue, to make way for the Greeks.

In her affidavit Ms Hendrickson sets out the comments she says she heard Mr Longbottom and Mr O'Rourke make.

When cross-examined, Ms Apps agreed that members were unhappy that the New Year's Eve function was moved downstairs for a Greek function, but denied that the complaints she heard were 'about it becoming a Greek club'.

Mr Longbottom and Mr O'Rourke deny saying the words alleged against them. They made no concession otherwise in cross-examination.

Again the evidence is not complete, and is conflicting. Ms Keely was not called by either party to give evidence. In the absence of her having given evidence or her absence being explained, we cannot make a finding about anything Ms Keely is alleged to have said or done. We are satisfied that Mr Longbottom and Mr O'Rourke complained that the New Year's Eve function was moved downstairs, and that a reason for their complaining was they believed that it should have been upstairs where it usually was.

Having regard to the considerations we set out above in [11] and the absence of any evidence suggesting otherwise, we are not satisfied that in relation to the alleged conduct, the people against whom Ms Hendrickson makes the allegations were acting as agents of the Club rather than as Club members in their private capacity. As well, we are not satisfied that a reason for their complaining was that Ms Hendrickson is Greek; in our view they would have complained about the New Year's Eve function being downstairs regardless of the race of the General Manager. There is no necessary nexus between the race of the General Manager and a complaint that that the New Year's Eve function was moved downstairs.

As an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint, the News Year's Eve allegation, is dismissed. To the extent that Ms Hendrickson relies on the News Year's Eve allegation as an incident which indicates the existence of a racially hostile work environment, we address that larger question below at [126]-[134] and following.

The Juke Box allegation

Ms Hendrickson alleges that:

Keith Longbottom ... has encouraged members on many occasions to turn the Juke Box to full volume to create a conflict.

In her affidavit Ms Hendrickson recounts comments she says she heard Mr Longbottom make and things she says she saw Mr Longbottom do. She says, for example that on 26 May Mr Longbottom said 'we should not have to put up with that wog music' and 'I'm not Greek, I can't understand that wog shit'. She says that on 9 December Mr Longbottom turned up the juke box and said 'We should have preference over Greeks', and 'I'm a director I can turn this up if I want', which led to an argument between Ms Hendrickson and Mr Longbottom during which Mr Longbottom made repeated references to 'wogs'. She says that made the same complaints later in December, and that Mr O'Rourke said 'don't worry we'll get rid of the Greek music and we'll bring back our Club' (aff 60).

The separate allegation about Mr O'Rourke was not in Ms Hendrickson's original complaint. It appears that she relies on it as further evidence in support of her complaint. As it relates broadly to the playing of Greek music we recount it here.

Mr Malaxos was called by Ms Hendrickson to give evidence. He was a member of the Club at the time. Little of Mr Malaxos's affidavit survived objection to its admissibility. In his oral evidence Mr Malaxos said that he saw Mr Longbottom turn the juke box on when the Greek live music was on.

Mr Malaxos agreed that he did not raise with any of the Club's directors any concerns he had about the things that he says he heard.

Mr Longbottom denies turning the volume up as alleged, and denies saying the words alleged against him. Mr O'Rourke denies making the comment alleged against him. Neither Mr O'Rourke or Mr Longbottom made any concessions in cross-examination.

On the available evidence, we are satisfied that on one occasion Mr Longbottom turned the juke box on in response to the Greek music which was playing. Ms Hendrickson is not able to allege this as an incident of racial discrimination by the Club because it is not conduct directed towards her. As an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint is dismissed.

To the extent that Ms Hendrickson relies on this as an incident which indicates the existence of a racially hostile work environment, we address that larger question below at [126]-[134] and following.

The O'Rourke allegation

Ms Hendrickson alleges that:

William O'Rourke's relatives and friends [make] offensive comments about Australian Greeks and myself.

In her affidavit Ms Hendrickson did not specify what was said by 'William O'Rourke's relatives and friends', or when or where it was said.

Ms Hendrickson does not identify the 'relatives and friends' of Mr O'Rourke by name. They were not called as witnesses by either party. No other evidence was led in relation to this allegation. We are not satisfied that offensive comments about Australian Greeks and Ms Hendrickson were made by relatives and friends as alleged. Accordingly, as an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint is dismissed.

Because we are not satisfied that William O'Rourke's relatives and friends made the comments alleged, Ms Hendrickson cannot rely on them as an incident which indicates the existence of a racially hostile work environment.

The graffiti allegation

In her complaint Ms Hendrickson alleges that:

On Christmas Eve [2006] the Club's exterior walls were painted with slogans, such as 'Fuck off Greek', 'Fuck off Wog Cunt', Blacks Only Wogs Fuck off, these slogans have been painted every night on the walls of the Club ... the slogans have become much more violent in their content such as 'Blacks Only Die Wogs', 'Kill Greeks'.

During all this time [the period when the graffiti appeared] Keith [Longbottom] and William [O'Rourke] displayed indifference to what was happening. They were heard supporting other members who shouted 'Just sack her and fuck off the Greeks'.

In her affidavit Ms Hendrickson provides photographs of the graffiti and recounts things she says she did and said in relation to the graffiti. She says that the graffiti was painted over every day and recurred every night 'from that date'. She says that she felt that 'Kill You Wog Cunt' was directed at her, and that she felt threatened.

Ms Hendrickson says that the Club did nothing to investigate or prevent the graffiti. She says that Mr McDonald told her that Mr O'Rourke had said he knew who had done it, and that she heard Mr Longbottom say that he agreed with the sentiments expressed in the graffiti.

In her oral evidence Ms Hendrickson said that despite her approaches to them, the Club's directors did nothing to investigate or stop the painting of the graffiti. She told the Tribunal that a few days after the graffiti first appeared on 24 December she met informally with some of the directors at a table in the club to ask them to act, and that until the end of January she had many other informal discussions to the same end with the directors. She told the Tribunal that she raised the issue formally with the Board on 27 December.

Ms Hendrickson was cross-examined about the graffiti allegation. She Ms Hendrickson elaborated on the appearance - and, she says, the daily disappearance - of the graffiti. The evidence on this point is indicative of the confusion surrounding much of her evidence. Ms Hendrickson was asked 'Were you with Mr McDonald when he painted [the graffiti] over?' and she replied 'Not on every occasion'. Ms Hendrickson was then asked 'So you don't know what it said the last time it had to be painted over?' and she replied 'Yes. I saw each time. There were sometimes when I didn't see on the occasions when he came in on the early hours of the morning'. Ms Hendrickson was asked by the tribunal to clarify whether she saw the graffiti each time or not. She said 'There were a few occasions when I didn't see it because he came in early to paint over it'.

In his affidavit Mr McDonald says the graffiti 'were painted on the walls every night for a period of over one month'. He says that 'The matter was to my knowledge known to other members of the Board, but they did nothing about it'. He says 'I took it on myself to each morning paint over the comments'. He says that both Mr O'Rourke and Mr Sadgrove said to him that Ms Hendrickson 'deserved' the graffiti. In his evidence Mr McDonald repeated this account, saying that the graffiti appeared every 24 hours for 'three or four weeks'. When asked how if he painted it 'about 30 times' he said 'I don't know how many times, a lot of times'; when told that Ms Hendrickson believed it was 30 times he said 'I wouldn't doubt it'.

In cross-examination Mr Owen agreed that he had seen the graffiti, and that the graffiti had not been the subject of any discussion or investigation by the Board.

Mr Sadgrove denies the remarks Mr McDonald alleges against him, and was not challenged on this denial in cross-examination.

Mr O'Rourke agrees that he thought he knew who was responsible for the graffiti, although he does not recall telling Mr McDonald this. His evidence is that on becoming aware of the graffiti he confronted a person he believed was responsible for it, and that that person denied responsibility.

Mr Longbottom denies saying the words alleged against him. He denies he was unconcerned about the graffiti but says he couldn't do anything himself as he thought it was a matter for the police. He says he gave Ms Hendrickson the business card of someone he met who would remove the graffiti.

Ms Apps's evidence is that she was aware of the graffiti. When cross-examined, Ms Apps said she saw the graffiti once. She agreed with a proposition that it was racially motivated, agreed with the proposition that someone could have painted over it. She said that she did not recall Ms Hendrickson's saying that the graffiti was directed at her (Ms Hendrickson).

There is photographic evidence of graffiti. A number of witnesses say that they saw graffiti. We are satisfied that on more than one occasion there was offensive race-based graffiti painted on the walls of the Club.

To the extent that Ms Hendrickson relies on the fact of the graffiti as an incident which indicates the existence of a racially hostile work environment, we address this issue below at [126]-[134] and following.

To the extent that Ms Hendrickson alleges this as an incident of racial discrimination by the Club, the allegation could not be that the Club created the graffiti, but only that it failed to act to prevent it from recurring. We note that in her complaint, Ms Hendrickson did not make the allegation in these terms, simply stating the fact of the graffiti. It was in her evidence that Ms Hendrickson complained that the Club did nothing to investigate or prevent the graffiti, although such a complaint might be inferred from her original complaint which stated that during the period when the graffiti appeared both Mr Longbottom or Mr O'Rourke 'displayed indifference to what was happening'. The Club did not object to Ms Hendrickson's evidence that the Club failed to investigate or prevent the graffiti, and led its own evidence in reply.

In her evidence Ms Hendrickson said that as a result of the graffiti, 'I became distressed and concerned for my safety, and raised the matter with the Board. Keith Longbottom and William O'Rourke both appeared to me to be disinterested' (in its context we take the word 'disinterested' to mean 'uninterested').

There is sufficient consistent and reliable evidence to satisfy us that a number of directors of the Club saw or knew of the graffiti. The President of the Club saw the graffiti every day it appeared. The graffiti was large, extensive, repeated and racist. It defaced the Club. It was visible to members, staff and the public.

As we have said above, no single director carries responsibility for the conduct of the board. In this case so many of the directors, including the President, knew of the graffiti that we are satisfied that knowledge of it can be attributed to the Club.

A number of directors acted on the knowledge they had. The Club President Mr McDonald reported the graffiti to the police, and conveyed to them some intelligence regarding a van that had been seen. Mr Longbottom referred Ms Hendrickson to a person who removes graffiti. Mr O'Rourke confronted a person he believed had been responsible. McDonald personally removed the graffiti each time it appeared. In Mr McDonald's view, he did all that he reasonably could have done as President to investigate the matter.

Ms Hendrickson did not identify anything the Club could have done that the directors did not do. In fact, Ms Hendrickson did not seek any formal action by the Club. Although she claims in her evidence that she 'raised the matter with the Board', Ms Hendrickson did not did not in fact do so. The Club did not discuss the issue at its meeting on 27 December, nor did Ms Hendrickson put it on the agenda or report on it to the Board.

In a letter addressed to the Club President dated 14 January 2007, Ms Hendrickson complained of 'racist discrimination' and refers to the statutory declaration which became her complaint to the Anti-Discrimination Board, in which she described the racist graffiti, but in the letter she did not seek any action by the Board to prevent the graffiti, nor did she complain of its inaction. Her evidence regarding that letter is that, having given it to the Club President, Mr McDonald, she was 'hoping for it to be dealt with in-house ... hoping that that would sort of stop it all happening'.

Though we attribute knowledge of the graffiti to the Club, we are not satisfied that it failed to act to prevent it. We are not satisfied that, at the time, Ms Hendrickson communicated to the Club any dissatisfaction with the steps that individual board members took. However, even if the Club did fail to act to prevent the graffiti, there is no direct or circumstantial evidence to satisfy us that it did so because Ms Hendrickson is Greek. In our view the Club would have, in the same circumstances, acted as it did regardless of the race of the General Manager.

Accordingly, as an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint is dismissed.

The nephew allegation

In her complaint Ms Hendrickson alleges that:

One night ... I was fronted by Mr Longbottom's nephew who called me words to the effect 'you're nothing but a fucking little wog cunt and that he was going to come back and kill me'. Keith Longbottom was more concerned with the prospect that his nephew may be barred then [sic] giving me support in the face of this threat.

We note that Mr Longbottom said in his evidence that the man involved in the incident was not his nephew.

In her affidavit Ms Hendrickson recounts conversations she says she had with Mr Longbottom, with the man she calls Mr Longbottom's nephew, with Mr Longbottom's niece, and with Mr O'Rourke. Differently from her complaint to the Anti-Discrimination Board, Ms Hendrickson says that 'Mr O'Rourke, Mr Keith Longbottom and Mr Sadgrove were all in the Club [at the time, and] none of them came to my defence. They did not offer any support ... Mr Longbottom said ' ... he's done nothing wrong' ... Mr O'Rourke said to me 'You should just forget about it, it's nothing'.

Mr Longbottom denies saying the words attributed to him. He says he does not recall Ms Hendrickson complaining to him about the incident.

Mr O'Rourke denies saying the words attributed to him. His evidence was that he did not believe he was obliged 'to come to her defence' as Ms Hendrickson had authority over the members and there were security staff available. Mr Sadgrove has no recollection of the incident.

To the extent that Ms Hendrickson relies on the fact of the 'nephew's' comments to say that there was a racially hostile working environment, we address this issue below at [126]-[134] and following.

Ms Hendrickson does not - and could not - rely on the allegation as an incidence of racial discrimination by the Club. The allegation can be relevant to these proceedings only as a claim that the Club failed to support her in the face of racist language. If it was the case that the people she identified did fail to support her, their failure was as members, not as representatives of the Club. Even if a failure to act could be attributed to the Club, there is no direct or circumstantial evidence to satisfy us that it failed to act because Ms Hendrickson is Greek. Accordingly, as an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint is dismissed.

The campaign allegation

In her complaint Ms Hendrickson alleges that:

William O'Rourke and Keith Longbottom then mounted a campaign to get rid of me as the General Manager because they believed that if I was gone all the Greeks would go and they would have their club as they referred to it as a 'Blacks Only Club' ...

In her affidavit Ms Hendrickson recounts the comments she says she heard Mr Longbottom and Mr O'Rourke make, and things she says she saw them do. She says, for example, that in late December Mr O'Rourke accused her of favouring her Greek friends and said 'at the next Board meeting we'll do something about it'. She says that on New Year's Eve she heard Mr O'Rourke say 'we're going to put a stop to all these Greeks ... when we get rid of her it'll be over', and nod in agreement with a woman who said 'you better get rid of these wog cunts'. She says that on 7 January she heard Mr O'Rourke, referring to a Greek cultural event taking place in the Club on the Club's raffle day, say to Mr Longbottom 'it's her doing' and 'we'll stop her ... and her Greeks'. She says that on 8 January she heard a conversation among Mr Longbottom, Mr O'Rourke and a member where Mr Longbottom and Mr O'Rourke assured the member that they would 'get rid of the Greeks' and that 'she'll be gone'. She says that on 31 January she heard Mr Longbottom say to Mr Sadgrove that he, Mr O'Rourke and Mr Owen intended boycotting the board meeting because they 'didn't like the agenda' and wanted 'more time to get rid of Avgoulla'.

In his evidence Mr McDonald recounted what he says he heard Mr Longbottom, Mr O'Rourke and Mr Sadgrove say. His evidence was that the comments he heard 'were made on a daily basis', but were made in the hearing of Ms Hendrickson 'only a couple of times'.

Mr O'Rourke and Mr Longbottom deny saying what is alleged against them. Mr Longbottom does not recall Mr O'Rourke saying what he is alleged to have said, and denies saying the words 'she'll be gone'.

Mr Sadgrove denies that Mr Longbottom said anything other than that he and Mr O'Rourke were not coming to the meeting. Mr Longbottom denies having said that he reason he was not attending was because of the agenda.

Ms Hendrickson makes no allegations of specific conduct, only of things said. There is no evidence of anything actually done by either Mr Longbottom or Mr O'Rourke which could be characterised as part of a 'campaign' to have Ms Hendrickson's employment terminated. Although what is alleged to have been does suggest an intention on the speakers' part to remove Ms Hendrickson from her position at the Club, we are not satisfied that what is alleged to have been said was in fact said.

Even if the comments were made, having regard to the considerations we set out above in [11] and the absence of any evidence suggesting otherwise, we are not satisfied that in relation to the alleged conduct, Mr Longbottom, Mr O'Rourke and Mr Sadgrove were acting as agents of the Club rather than as Club members in their private capacity. As well, we are not satisfied that a reason for their expressing those views was that Ms Hendrickson is Greek.

As an allegation of racial discrimination against Ms Hendrickson by the Club, this part of the complaint is dismissed. To the extent that Ms Hendrickson relies on the allegation as an incident which indicates the existence of a racially hostile work environment, we address that larger question below in [126]-[134] and following.

The brother-in-law allegation

Ms Hendrickson alleges that:

Whilst I was away [when ill] William O'Rourke's brother-in-law shouted across the Club to William 'why haven't you done it yet' 'you are gutless and why have you not fucked her off already'. He said words to the effect that we don't want those Greek bastards here. William O'Rourke and Keith Longbottom did not come to my defence and I believe that his brother in law was repeating comments that Mr O'Rourke and Mr Longbottom had already said.

Mr O'Rourke's brother-in-law was not named in the proceedings and did not give evidence. Neither Mr O'Rourke not Mr Longbottom was cross-examined in relation to this incident. There is no evidence to support Ms Hendrickson's allegation that Mr O'Rourke's brother-in-law was repeating comments that Mr O'Rourke and Mr Longbottom had already said. We are not satisfied that the comments attributed to O'Rourke's brother-in-law were said, or had previously been said by Mr O'Rourke or Mr Longbottom.

Ms Hendrickson does not - and could not - rely on the allegation as an incidence of racial discrimination by the Club. To the extent that Ms Hendrickson alleges that these comments were an incident of racial discrimination by the Club, it appears that she is alleging that it failed to support her. But we are not satisfied that the comments were made, so this part of the complaint is dismissed, and Ms Hendrickson cannot rely on the comments as indicating the existence of a racially hostile work environment.

The racist remarks allegations

In the course of making the Taverna allegation, the Juke Box allegation, the nephew allegation and the brother-in-law allegation, Ms Hendrickson makes more general allegations about racist language. For example:

Keith Longbottom and Barbara Keely were always making remarks about Australian Greeks visiting the Club, insinuating that their club was turning into a Greek Club.

Keith Longbottom has continually complained and made divisive comments to other members about not having the Greek Nights

Keith [Longbottom] and William [O'Rourke] ... were heard supporting other members who shouted 'Just sack her and fuck off the Greeks'.

In her affidavit Ms Hendrickson offers particulars of these allegations. For example, she says she heard Mr Longbottom refer to a Club staff member as a 'daygo wog', and heard a club member say the same in the presence of Mr Longbottom. She says that after the Board meeting on 19 April Mr Longbottom said to her 'you Greeks stick together', and that in early May she heard Mr Longbottom say to Club members 'Look at her. See how those Greek cunts stick together'. She says that on 5 January 2007 Mr O'Rourke said to her in the presence of other members that she was 'bludging in here all day talking to your Greek mates', and that she heard Mr O'Rourke say the same to Mr Longbottom who agreed that Ms Hendrickson was always 'fussing over wogs'. She says that during January she heard pejorative comments about 'Greeks' from tables where Mr Longbottom and Mr O'Rourke were seated.

Ms Hendrickson says that at an unspecified time Mr Longbottom, Ms Keely and another Club director Mr Grant Rogers rejected her complaint about the performance of a caterer on the basis that she was complaining only because he was not Greek.

Mr McDonald recounts comments he says he heard Mr Longbottom and Mr O'Rourke make that referred to Ms Hendrickson's being 'the Greek' and a 'wog'. In his evidence Mr McDonald recounted what he says he heard Mr Longbottom, Mr O'Rourke and Mr Sadgrove say. His evidence was that the comments he heard 'were made on a daily basis', but were made in the hearing of Ms Hendrickson 'only a couple of times'.

Mr McDonald was cross-examined in relation to his evidence about racist comments he says the heard Mr Longbottom, Mr O'Rourke and Mr Sadgrove make. He says he did not raise the fact of these comments at Board meetings because he wanted to deal with the issue privately among the directors: 'in-house' and as a 'quiet word to a fellow member', but there is not evidence that he did so. Mr McDonald denied that reason that the issue was not raised at a Board meeting was because the comments were never made or, if made, were not 'serious'.

In his evidence Mr Malaxos says that he 'sensed hostility' at the Club, directed to 'Greeks'. He says in the period May to August 2006 he heard groups of people say things derogatory of 'Greeks'. He says he saw among those people Mr Longbottom, Mr O'Rourke, Mr Hutchinson, and Mr Charles Matthews. Mr Malaxos's evidence is that he did not hear Mr Longbottom say any of the derogatory things that he, Mr Malaxos, heard. He acknowledged that he is unsure of what Mr O'Rourke looks like.

Mr Malaxos agreed that he did not raise with any of the Club's directors any concerns he had about the things that he says he heard.

Neither Ms Keely nor Mr Rogers was called as a witness by either party. In the absence of their having given evidence or their absence being explained, we cannot make a finding about anything they are alleged to have said or done.

Mr O'Rourke and Mr Longbottom deny saying the words alleged against them. Mr Longbottom does not recall hearing Club members says the words alleged to have been said in his hearing. When being cross-examined, however, Mr Longbottom agreed that he had heard members express opposition to 'Greeks' in the Club. He denied that he expressed the same views. He says that he would have told the members to express their concerns to the Board.

We are satisfied that from time to time pejorative comments were made by unidentified members of the Club, and by identified members of the Club. Having regard to the considerations we set out above in [11] and the absence of any evidence suggesting otherwise, we are not satisfied that in relation to the alleged conduct, the identified members were acting as agents of the Club rather than as Club members in their private capacity.

Was there a racially hostile work environment?

Ms Hendrickson complains that the terms and conditions of her employment were racially hostile. It is not enough for a complainant merely to say that in their view such an environment existed, although Ms Hendrickson's own perception is relevant to whether there was in fact a racially hostile work environment. Also relevant is whether there is objective evidence of her having that perception and of such an environment. Ms Hendrickson relies on the allegations above as such evidence.

We are satisfied of the following. Ms Hendrickson knew that her relocation of the New Year's Eve function was resented and she believed that it was because its place was taken by a Greek-themed function; she knew that on at least one occasion Mr Longbottom turned up the juke box music while Greek music was playing, and she believed that Mr Longbottom was opposed to the playing of Greek music; she knew that she had been subjected to racist abuse by a patron of the Club, and she believed that members did not act to defend her; she believed that pejorative remarks were consistently made about a Greek presence in the Club, she knew that there was racist graffiti and believed that it was directed at her, and she believed that individual directors of the Club had not acted to prevent or defend her against racial comments or conduct.

Accordingly we are satisfied that Ms Hendrickson perceived that she was working in a racially hostile work environment. The evidence in support of that perception, and of the actual existence of such an environment, is limited, although the most substantial of it is the undoubted existence, at some stage in and after late December 2006, of some amount of racist graffiti on the walls of the Club. Until that time, none of the incidents that Ms Hendrickson relies on as having produced a racially hostile work environment was done, or was caused by or permitted by the Club. Nor was any of it, except the graffiti, brought to the Club's attention. Although Ms Hendrickson now complains of a racially hostile work environment during 2006, she did not make that complaint at the time. During the period of her employment Ms Hendrickson carried on her duties in what she maintains was a dedicated and exemplary manner.

Ms Hendrickson had ample opportunity to raise her concerns throughout 2006. She was the Club's General Manager; she was on close and regular speaking terms with successive Presidents of the Club during the period; she saw Club directors daily; she drafted the Club's meeting agendas; and she attended and reported to each of the Club's meetings.

We are not satisfied that before the appearance of the racist graffiti in late December 2006 there was any basis for the Club to have been aware of a racially hostile work environment, if it in fact existed, or of Ms Hendrickson's perception of one. If there was a racially hostile work environment before the graffiti, the Club was not responsible for it.

In late December 2006 the racist graffiti was there for all to see. It was seen by staff and directors, including the Club's President. We are satisfied that from that time knowledge of the racist graffiti was sufficiently notorious for knowledge of it to be attributed to the Club.

The existence of racist graffiti supports Ms Hendrickson's claim that she was in a racially hostile work environment from at least that time, and that the Club knew or ought to have known this. The Club was not responsible for applying the racist graffiti, but as an employer it had a responsibility to act to remove and prevent it. We are satisfied that the Club did act to remove and prevent the graffiti: the police were asked to investigate; Mr McDonald, the Club's President, removed the graffiti each time it appeared; Mr Longbottom recommended someone to remove the graffiti; and Mr O'Rourke pursued someone he believed was responsible. Ms Hendrickson did not otherwise ask the Club to act. She did not raise the issue at a board meeting on 27 December.

The Club did not condone the graffiti, and it acted to remove it and to prevent it. We are satisfied that the Club was not responsible for the existence or recurrence of the graffiti, or for a racially hostile work environment which existed or was perceived by Ms Hendrickson to exist. Accordingly, this part of the complaint, relating to a racially hostile work environment, is dismissed.

We have dismissed each allegation as a part of the complaint; accordingly, the whole of the first complaint is dismissed.

SECOND COMPLAINT: termination of employment

In her second complaint, of 11 April 2007, Ms Hendrickson alleges that the Board of the Club resolved to terminate her employment because of her race and/or as an act of victimisation because she had complained of discrimination. In her complaint she says:

Mr O'Rourke and Mr Longbottom made comments to members and staff about me lodging a complaint with the Anti-Discrimination Board saying words to the effect 'She's definitely gone now' and 'She'll be sacked at the next meeting'.

...

Mr Longbottom and Mr O'Rourke mounted an organised campaign to remove me from the Club at all costs ...

Mr Keith Longbottom and Mr O'Rourke were ... determined to fire me ... They approached other directors in an attempt to get agreement to fire me. They lied and made false comments to the other directors. Using friends and contacts they caused complaints about me to the [Office of Liquor, Gaming and Racing (OLGR)]. They told the other directors that an officer from the OLGR told them that 'I had to be dismissed as a matter of urgency' ...

Mr O'Rourke and Mr K Longbottom convinced Mr L Sadgrove and Mr Brad Owen that both the [Department of Gaming and Racing] and Clubs NSW had advised them that I had to go.

...

When the racist comments and graffiti failed to force me to leave they used any means possible to have me removed ...

It was a Witch-Hunt and their purpose was to remove me at all costs.

The end result was that Mr W O'Rourke and Mr Keith Longbottom with the assistance of Mr Henry Morris managed to persuade two other directors to dismiss me based on their lies and a vicious campaign of victimisation.

Reason for dismissal

We note first that it appears from the terms of her complaint that Ms Hendrickson alleges that the reason for the Club's decision was a campaign by Mr Longbottom and Mr O'Rourke. That is not an allegation of racial discrimination or victimisation, and would not engage the Act. Nor would the Act be engaged by an allegation that Mr Longbottom and Mr O'Rourke conducted a campaign against her because of her race or her having lodged a complaint.

Ms Hendrickson's case was run - and responded to - on the basis that her complaint is that the reason for the Club's decision was either that she is Greek (racial discrimination), or that she had complained of discrimination (victimisation). This restatement of the allegations brings the complaint within the Tribunal's jurisdiction, and the case was run on that basis. We proceed to decide the matter on that basis.

The question to be answered is why did the Club - by a decision of its board - terminate Ms Hendrickson's employment? While Ms Hendrickson says it was either because she is Greek or because she had complained of discrimination, the Club says that the sole reason was Ms Hendrickson's poor work performance, for which it relies on extensive evidence of alleged conduct by Ms Hendrickson.

It is not necessary for the Club to say or prove anything about Ms Hendrickson's actual work performance, and certainly not to go as far as to say that her work performance was the sole reason for the termination of her employment. The issue for us whether her race, or her having complained of discrimination, was a reason. That issue is not determined by deciding that poor work performance was a reason; it may have been an additional, or even a predominant reason, but it is only relevant to the issue if it can be shown to have been the only reason.

A significant part of the Club's case was spent on establishing that Ms Hendrickson's work performance was poor, even though this was not necessary to its case. The Club need only show that it had a genuinely held belief in her poor performance, that that belief was a (or the) reason for terminating her employment, and that her race or her having complained of discrimination was not a reason. Evidence of Ms Hendrickson's actual work performance - distinct from evidence of the Club's belief in her poor performance - is relevant only to the extent that it supports the Club's claim that its belief was genuinely held.

Work performance

There is extensive evidence before us that a number of directors were concerned about Ms Hendrickson's performance as General Manager as early as August 2006. There is as well extensive evidence before us of the matters that the directors say gave them reason to be concerned.

On 24 August 2006 the board gave Ms Hendrickson a letter asking her to explain a large number of concerns about her performance, and she did so at a subsequent board meeting. Concerns about Ms Hendrickson's performance led some members to meet on 3 November, although there is a dispute about whether that meeting was properly constituted; certainly the 'resolution' at that meeting to terminate Ms Hendrickson 's employment was not acted on.

Mr Owen's evidence is that he had concerns about Ms Hendrickson's performance as General Manager when the letter of 24 August was given to her, and that he continued to have those concerns. He did not think she was entitled to the 'second chance' she was given when she addressed those concerns at a subsequent board meeting. At the disputed board meeting on 3 November he attended by phone and supported termination of Ms Hendrickson's employment due, he says, 'to her poor performance'. At the February meeting he voted for the termination of her employment because of poor performance . It was not suggested at all to Mr Owen in cross-examination that his views about Ms Hendrickson's performance were not honestly held. Nor was it suggested to him that concerns about Ms Hendrickson's performance were not the reason for the Club's having dismissed her.

Mr O'Rourke's evidence is that he voted to terminate Ms Hendrickson's employment because of her performance. He says that he was happy with her work performance for the first few months, but not towards the end of 2006 when issues arose about the paying of bills and an inspection by the relevant government department. It was not suggested at all to Mr O'Rourke in cross-examination that his views about Ms Hendrickson's performance were not honestly held, or were not in fact a reason for the Club's having dismissed her.

Mr Longbottom's evidence is that the Club decided to terminate Ms Hendrickson's employment because of 'major problems with her performance'. It was not suggested to Mr Longbottom in cross-examination that these views about Ms Hendrickson's performance were not honestly held, or were not in fact the reason for the Club's having dismissed her.

Like Mr O'Rourke, Mr Sadgrove had been happy with Ms Hendrickson's performance, but changed his view only in February 2007 on learning of the details of some of Ms Hendrickson's financial dealings on behalf of the Club with third parties. It was he who moved the motion at the February 2007 meeting which terminated Ms Hendrickson's employment; the minuted motion was that Ms Hendrickson 'was to hand in her resignation immediately due to the lack in the partake (sic) of responsibilities she should hold within the club'. It was not suggested to Mr Sadgrove in cross-examination that the minuted motion did not accurately record his view of Ms Hendrickson's performance, or that those concerns were not in fact the reason for the Club's having dismissed her.

Mr Graham Long was called by the Club to give evidence. He had been a director for a short period in late 2006. He was not a director when Ms Hendrickson 's employment was terminated, but he had been a director, and the Club's treasurer on 3 November when a meeting of the board, the legitimacy of which is disputed, purported to terminate Ms Hendrickson 's employment. Mr Long's evidence is that he participated in the disputed 3 November meeting and the resolution then to terminate Ms Hendrickson's employment, because Ms Hendrickson refused to make financial records available to him. He then resigned as treasurer of the Club for the same reason. Mr Sadgrove confirms that Mr Long's express concern was that Ms Hendrickson had not given him 'the books'. It was not suggested to Mr Long in cross-examination that his views about Ms Hendrickson's performance were not honestly held.

There is evidence of matters that the directors say gave them reason to be concerned about Ms Hendrickson's performance. There is evidence from the directors that they actually had those concerns, and that those concerns were the reason for which Ms Hendrickson was dismissed. Ms Hendrickson, and to a lesser extent Mr McDonald, gave detailed evidence to address and counter the claims that her work performance was poor. Her evidence did not, however, suggest, let alone satisfy us, that the directors' concerns about her work performance were not genuinely held or a reason for her dismissal. Nor did her evidence about her work performance satisfy us that there was no reasonable basis for the directors to have concerns.

We are satisfied that the directors' concerns about Ms Hendrickson's work performance was not merely a reason, but was a significant and sufficient reason for the Club's decision to terminate her employment. We cannot say whether it was the only reason.

'Race' as reason for dismissal

It is notoriously difficult for a person to prove that their race is a reason for someone else's conduct. There is no direct evidence of why the Club terminated Ms Hendrickson's employment. In the circumstances there should be: the decision was taken at a Board meeting for which there should be available an agenda, board papers, and minutes setting out the reasons for a motion to terminate Ms Hendrickson's employment. There should as well have been direct questions asked of all the directors who gave evidence as to their reasons for having terminated her employment. None of that is in evidence. Instead we have to attempt to infer from the circumstances the reason or reasons for the Club's having terminated Ms Hendrickson's employment.

Ms Hendrickson presented a very limited case in support of a complaint that her race was a reason for her termination. The only evidence is of incidents in which individual directors were involved, which we have addressed above. In some of those incidents it is alleged that individual directors engaged in race-based conduct, and in some it is alleged that individual directors campaigned to have Ms Hendrickson dismissed. There is no evidence of any connection between the allegedly race-cased conduct of some of the directors with the decision to terminate, and no evidence that the decision of the board was on the ground of race. It might be inferred that some directors were moved for race-based reasons to support the decision to terminate Ms Hendrickson's employment, but Ms Hendrickson has not explicitly alleged this, nor was that proposition put to the directors.

In fact it was scarcely part of Ms Hendrickson's case before the Tribunal that her race was a reason for the Club's decision to terminate her employment. That proposition, which is essential to establish racial discrimination, was not put to any of the Club's witnesses, and was not argued for by Ms Hendrickson's counsel in his submissions. In cross-examining Mr O'Rourke, for example, counsel for Ms Hendrickson did not suggest to him that a reason for the board's termination of her employment was that she was Greek; rather, it was suggested to him that the reason was 'because she brought all of this Greek entertainment to the Club'. If that was a reason - which Mr O'Rourke both rejected and agreed was possible - it is not a reason that is proscribed under the Act. The Tribunal asked Mr O'Rourke if 'a reason they [the board] wanted her to go was because she was Greek', to which he replied 'No, I don't think so'. Cross-examination of the directors was more concerned with clarifying when and how the relevant board meeting took place, and challenging the directors' evidence about Ms Hendrickson's work performance.

Mr Long's evidence related almost exclusively to concerns he had at the time with Ms Hendrickson 's performance as General Manager, specifically with her financial management. It was not suggested at all to Mr Long in cross-examination that Ms Hendrickson 's race was a reason for his seeking termination of her employment at that time. Relevantly, he was asked only if, on an unspecified occasion he had called Ms Hendrickson a 'wog' and he said 'I never did'.

Mr Owen was present at the meeting in February 2007 when Ms Hendrickson's employment was terminated, and at the disputed meeting of 3 November, when a resolution was passed to terminate her employment. Mr Owen's evidence related substantially to the Club's concerns with Ms Hendrickson 's performance as General Manager. It was not suggested at all to Mr Owen in cross-examination Ms Hendrickson 's race was a reason for his supporting termination of her employment.

It was not suggested to Mr O'Rourke in cross-examination that Ms Hendrickson 's race was a reason for his voting for termination of her employment. In fact it was suggested to him that the Club's decision to terminate her employment was 'in order to get rid of the Taverna nights'. Mr O'Rourke denied this proposition, but to the extent that the proposition represents Ms Hendrickson's case, it suggests that her termination was because of a reason other than her race.

It was suggested to Mr Sadgrove in cross-examination that the 'real reason' why Ms Hendrickson's employment was terminated was a 'racial one', and he denied that proposition. He was not questioned further on the matter.

It was submitted for Ms Hendrickson that 'The Tribunal would find that race was a factor in the termination'. But the submissions make no argument for such a finding, and canvas no evidence that would support such a finding. Rather, the submissions reflect the direction of Ms Hendrickson's evidence, which was to allege that the termination was because she had complained of discrimination. The submissions refer (albeit under a heading 'Discrimination') to 'termination following the complaint of racial discrimination', and to 'the Board [knowing] about the letter'. While cross-examination of the Club's directors did not suggest to them that Ms Hendrickson's race was a reason for termination of her employment, it did pursue the question of whether they had prior knowledge of her having lodged a discrimination complaint.

Ms Hendrickson's claim that race was a reason for her dismissal was not put strongly, and was scarcely supported by the evidence. In light of the notorious difficulty of proving race discrimination it could have been argued that there was evidence available which supports an inference that race was a reason for her dismissal, but that was not argued on her behalf. We have looked at the available evidence from that perspective ourselves and cannot see sufficient evidence on the basis of which such an argument could reasonably be made.

We are not satisfied that Ms Hendrickson's race was a reason for the decision of the board of the Club to terminate her employment. Accordingly that part of the complaint is dismissed.

Evidence of victimisation

There remains the question of whether either Ms Hendrickson's letter to Mr McDonald dated 14 January 2007, or her having later lodged a complaint with the Anti-Discrimination Board, was a reason for the Club's decision to terminate her employment.

Ms Hendrickson's case for victimisation relies on our being satisfied that her having complained of discrimination was known to the directors at the time that they decided to terminate her.

Mr McDonald's evidence is that he 'discussed [the letter of 14 January] with the people concerned in the letter outside of the boardroom it was in a social situation'. He identified Mr Longbottom, Mr O'Rourke and Mr Sadgrove. When asked what he discussed with them, Mr McDonald said 'I asked them why they would - why they were going ahead with this, what were the reasons behind it and none of them could give me a direct answer because in fact they went in the opposite way. They said 'Oh no, we've got all the confidence in the world in the CEO'; but in fact that wasn't the case'. To the limited extent that this evidence tells us what it was in the letter that Mr McDonald discussed with the other members, it suggests to us that the topic of discussion was confidence in Ms Hendrickson 's ability; Mr McDonald does not refer at all to an exchange concerning allegations of racial discrimination.

Later in his evidence Mr McDonald says that on receiving the letter he 'went up to the directors concerned and ... spoke to them regarding the derogatory remarks'. Mr McDonald's evidence is that 'the directors' saw the letter of 14 January because they were given copies of it by Ms Hendrickson. Ms Hendrickson does not make this claim herself, saying only that she had written the letter to Mr McDonald. Mr McDonald says that he knows that Ms Hendrickson gave them each a copy of the letter because 'they' had a copy with them and asked him to explain it. He says his reply was 'You should know because I've already spoken to you about it.

It appears that some staff members may have been aware of the letter, because Ms Apps agrees that it 'may well have been' in mid-January that her colleague Cheryl Laughlin told her that she, Ms Laughlin, had seen the letter. While this helps establish that the letter existed at the time, it does not advance at all a case that the directors were aware of it.

Mr O'Rourke's evidence is that he had not seen the letter, and Mr Longbottom's evidence is, at first, that Mr McDonald 'could've [told him of the letter] I don't know', and then, twice later in his evidence that he did not know of it. Mr Sadgrove's evidence is that he has no recollection of being told of the letter. Mr Owen's evidence is that the letter was never given to him by Mr McDonald, Ms Hendrickson or anyone else.

Mr McDonald's evidence is that more than one director approached him with their own copy of the letter to ask him about its content after, he says, he had already spoken to them about it. In the absence of Ms Hendrickson's herself claiming to have given a copy of the letter to the directors, and in light of the consistent denials of the directors from whom we heard evidence that they had seen the letter, Mr McDonald's evidence on this point is implausible. We are not satisfied that the directors were told by Mr McDonald of the letter.

The Anti-Discrimination Board received Ms Hendrickson's complaint on 7 February 2007 and wrote to Mr McDonald, the Club President, on 8 February. Mr McDonald did not distribute that letter to other directors, or table it at a board meeting. He did not otherwise tell directors of the letter, or tell directors of Ms Hendrickson's having lodged a discrimination complaint.

Ms Hendrickson's evidence is that she heard two directors, Mr Longbottom and Mr O'Rourke, say that they were aware that she had complained to the Anti-Discrimination Board, and that 'she's definitely gone', 'she'll be sacked at the next meeting'.

In his affidavit Mr Longbottom says that he does not recall saying the words alleged against him, and that he did not know of Ms Hendrickson's discrimination complaint at the time. Mr Longbottom's evidence is that he does not recall the board's having to deal with a complaint from the Anti-Discrimination Board in February 2007. He repeatedly said in his evidence that he could not recall when he became aware of Ms Hendrickson's having complained. Ms Hendrickson's allegation was not put to Mr Longbottom in cross-examination.

In his affidavit Mr O'Rourke denies saying the words attributed to him and denies hearing Mr Longbottom say what he is alleged to have said. Ms Hendrickson's allegation was not put to Mr O'Rourke in cross-examination. Mr O'Rourke was asked in cross-examination when and how he first became aware that Ms Hendrickson was alleging race discrimination against the Club. He said that he first knew from a staff member's having shown him a letter that had been sent by the Anti-Discrimination Board to Mr McDonald. As to when he knew of it, he gave no evidence until in answer to a question from the Tribunal he said 'Before, I think we come in [to the meeting at which Ms Hendrickson 's employment was terminated]. I'm not quite sure, yeah'.

The evidence of another director, Mr Sadgrove, is that he did not become aware of Ms Hendrickson's discrimination allegations until at least March and possibly April 2007, after she had been dismissed. He does not recall the matter of a discrimination complaint being raised at the board meeting on 28 February when Ms Hendrickson was dismissed, and does not recall the question of a discrimination complaint having been raised at that meeting.

It was put to Mr Owen in cross-examination that Ms Hendrickson's employment was terminated because she had made a complaint about racial discrimination, and he denied that. He says is that the board knew nothing of her allegations.

It was submitted for Ms Hendrickson that 'The applicant was terminated following her notification to the [Club] Board ... of her concern about 'racist discrimination' and following a complaint to the ADB ...'. That is an allegation merely of the relative timing of events. It was then submitted for Ms Hendrickson that 'This is victimisation'. It is not. It is victimisation only if her concern about 'racist discrimination' and/or a complaint to the ADB was a reason for being her terminated. We must be satisfied there was a causal nexus.

As we said above in relation to the graffiti allegation, the evidence does not satisfy us as to whether all or even a majority of board members knew that Ms Hendrickson had complained to Mr McDonald of racial discrimination. Nor does the evidence satisfy us as to whether all or even a majority of board members knew that Ms Hendrickson had complained to the Anti-Discrimination Board or, for those who did know, when they knew.

The evidence does not satisfy us that either Ms Hendrickson's letter to Mr McDonald dated 14 January 2007, or her having later lodged a complaint with the Anti-Discrimination Board, was a reason for the Club's terminating her employment. Accordingly that part of the complaint is dismissed, and the whole of the second complaint is dismissed.

Costs

We have commented above as to the manner in which the proceedings were conducted. We are of the preliminary opinion that in this case fairness does not require us to displace the statutory presumption that each party will pay their own costs (section 88 Administrative Decisions Tribunal Act 1997 (NSW)). We have however made an order enabling the parties to make application for costs if they wish.

ORDERS

1. The first complaint is dismissed. 2. The second complaint is dismissed. 3. Any application for costs will be filed and served within seven days of the date of publication of this decision, and any reply to such application will be filed and served within a further seven days.

**********

Decision last updated: 28 February 2011

Medium Neutral Citation:	Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd [2011] NSWADT 37
Hearing dates:	9, 19 and 11 March; 1, 2 and 3 June; and 9, 10 and 11 September, 2009
Decision date:	24 February 2011
Jurisdiction:	Equal Opportunity Division
Before:	S Rice, Judicial member L Monaghan-Nagle Non-judicial member L Mooney Non-judicial member
Decision:	1.The first complaint is dismissed. 2.The second complaint is dismissed. 3. Any application for costs will be filed and served within seven days of the date of publication of this decision, and any reply to such application will be filed and served within a further seven days.
Catchwords:	Race discrimination; employment; victimisation; attributed liability; directors' liability
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Carroll v Zielke & Ors (2002) EOC 93-177 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Murphy v David Jones Limited [2002] NSWADT 140 NSW v Amery (2006) 80 ALJR 753 O'Callaghan v Loder [1983] 3 NSWLR 89 Shellharbour Golf Club Ltd v Wheeler (1999) 46 NSWLR 253 Surti v Queensland [1993] HREOCA 3
Category:	Principal judgment
Parties:	Avgoulla Hendrickson (Applicant) Yarra Bay 16 ft Skiff Sailing Club Ltd (Respondent)
Representation:	S Coleman, barrister (Applicant) Tsintilas & Associates Lawyers (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	071076