Huang v Rheem Australia Pty Limited

[2005] NSWADT 226

CITATION:	Huang v Rheem Australia Pty Limited [2005] NSWADT 226
DIVISION:	Equal Opportunity Division
PARTIES:	Xiu Zhen (Nora) Huang Rheem Australia Pty Limited
FILE NUMBER:	041079
HEARING DATES:	27, 28 and 31 January 2005, 1, 23, 24 February 2005, 18 March 2005
SUBMISSIONS CLOSED:	05/05/2005
DATE OF DECISION:	10/06/2005
BEFORE:	Layton R - Judicial Member; Mooney L - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
APPLICATION:	Disability Discrimination - In work - Race Discrimination - In work - Sex Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Sex Discrimination Act 1984 (Cth)
CASES CITED:	Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Commissioner v Mooney (No 2) [EOD] [2003] NSWADTAP 67 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Elder v Department of Education and Training [2004] NSWADT 153 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham, 168 ALR 407 Reddy v International Cargo Express [2004] NSWADT 218 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Water & Ors v Public Transport Corporation (1991) EOC 92-390
REPRESENTATION:	In person K Sant, barrister
ORDERS:	That the Applicant’s claims be dismissed.

1 This decision concerns complaints made by Ms Xiu Zhen (Nora) Huang, the Applicant, of sex, race and disability discrimination and victimisation under Sections 7, 8, 24, 25, 49A, 49B, 49D, and 50 of the Anti-Discrimination Act 1977 in respect of Rheem Australia Pty Limited (Rheem), the Respondent. The Respondent denied these allegations.

SUMMARY

2 Rheem was not a uniformly happy workplace. Changes were introduced by Rheem management in mid-2002 which involved switching to an assembly line type of production where possible, and in order to ensure that the production flow was not disrupted, workers were told that any breaks had to be authorised by the leading hand, and two previously allowed breaks of 20 minutes each per shift were eliminated. The workers were unhappy and some simply didn’t comply. The management was unhappy because its authority was in some cases being openly flouted. In this context, in early November 2002, Ms Huang’s superintendent, Ms Lejtman was told by Ms Huang’s leading hand that she had gone on a break and he didn’t know where she was. When Ms Lejtman found Ms Huang she had been absent for some 20 minutes and didn’t explain herself. Ms Lejtman’s reaction of telling Ms Huang to attend counselling set off some six months of conflict. Rheem monitored Ms Huang’s breaks and productivity, and required her alone of all the workers to seek authorisation for a break from her supervisor, which was embarrassing, especially in the short period when the supervisor was told over the walkie talkie system ‘Nora go to toilet’ and the whole factory overheard. Rheem also compared her productivity to a colleague who was a male and Ms Huang found this unfair. Ms Huang responded by denying all allegations as to breaks and productivity, and by complaining to the EEO officer at Rheem that Ms Lejtman was a Communist, and was torturing her and treating her like an animal. Understandably, neither Ms Lejtman nor her management colleagues were pleased by what they saw as an insulting and inappropriate personal attack on Ms Lejtman, and management supported Ms Lejtman. Ms Huang complained to the Anti-Discrimination Board (‘the Board’) which understood (as the Rheem EEO officer had not) that Ms Huang was alleging discrimination on the grounds of sex, race and/or disability and, eventually, victimisation. Ms Huang also complained, unsuccessfully, to the Australian Industrial Relations Commission (‘the AIRC’) of unfair dismissal. After fully considering all the evidence, the Tribunal has concluded that Ms Lejtman and Ms Huang did not like each other, each could have communicated more sensitively, more respectfully, and in some respects, Rheem treated Ms Huang meanly. However, the only issue for the Tribunal is whether unlawful discrimination and/or victimisation occurred, and the Tribunal finds it did not.

HISTORY OF THE COMPLAINT

3 On 29 April 2003, 30 April 2003, 14 May 2003 and 27 May 2003, Ms Huang lodged complaints with the President of the Anti-Discrimination Board (‘the President’) alleging discrimination on the grounds of sex, race, and disability and victimisation in the area of employment. By a letter dated 4 May 2004, the President forwarded the complaints to the Administrative Decisions Tribunal (‘the Tribunal’).

4 In the proceedings before the Tribunal, the Applicant was not represented. The Respondent was represented at the hearing by Ms Sant, counsel, instructed by Gilbert & Tobin, Solicitors.

5 In her complaints to the Board, on 29 April 2003, Ms Huang alleged that the superintendent at her workplace, Rheem, claimed she had spent too long in the toilet, and since then she had received written warnings, her toilet breaks were monitored, her work had been unfairly scrutinised and she had been subjected to psychological ‘torture’. In the complaint on 30 April 2003 to the Board she claimed that she required lengthier toilet breaks because she is a woman, and she has ‘female related sickness’, and also she claimed that only Asian people at Rheem had received counselling and warnings about breaks. On 14 May 2003, she complained to the Board that during a meeting on 29 April 2003, she had been told she must notify the leading hand if she needed to go to the toilet and the leading hand then had to seek approval from the supervisor or superintendent for her to go to the toilet. On 27 May 2003, she alleged she had been asked to leave the factory on 24 April 2003 for no reason and she considered this amounted to dismissal, and to victimisation for her lodging the complaints to the Board.

REFERRAL OF THE CLAIMS BY THE BOARD

6 On 4 May 2004, after investigation of Ms Huang’s complaints, the President referred the complaints to the Tribunal under s 94(1) of the Act having formed the view that the complaints could not be conciliated. In the referral of the complaints by the Board to the Tribunal, the employer, Rheem, was named as sole Respondent.

7 At the case conference at the Tribunal on 30 August 2004, the parties agreed that the following points were not in issue: There was a change in practice in Rheem in mid-2002 when the company moved from a practice of having in each shift, lunch and tea breaks plus two 20 minute toilet breaks, to having only lunch and tea breaks, with any additional breaks for toilet and the like necessities being taken only as needed. This change in policy was not enforced until late 2002. Ms Lejtman, Ms Huang’s superintendent, spoke to Ms Huang about Ms Huang’s toilet breaks. The Respondent and Ms Huang agreed that 10 minutes was a reasonable time for a toilet break.

THE TRIBUNAL HEARING

8 The Tribunal hearing extended over the unusually long period of seven days, partly because of the large number of witnesses, but also because Ms Huang was communicating through a Mandarin interpreter, and was self-represented, and therefore the Tribunal allowed considerable time in order that Ms Huang have a fair chance to present her case.

9 As to Ms Huang giving evidence through a Mandarin interpreter, the Tribunal notes that on Day Five of the hearing Ms Huang asked for one of her witnesses, Mr James Jiang, to represent her because she could not understand the proceedings. The Tribunal refused this request because Mr Jiang had no relevant qualifications and the only reason Ms Huang gave for wanting him to represent her was that she did not understand the Mandarin interpreter. The Tribunal noted (as it had previously in the proceedings) that it was important that if Ms Huang did not understand the interpreter, she should ask for the interpreter to interpret again. The Tribunal offered to adjourn the proceedings and change interpreters. Ms Huang responded that she was nervous, it was very hard for her, sometimes the proceedings went too fast for the interpreter and sometimes, when the Tribunal and others spoke, she could not understand. However, when asked by the Tribunal ‘Do you understand the interpreter, when he interprets for you?’, Ms Huang responded ‘Yes’ and when the Tribunal asked her if she wanted another interpreter, Ms Huang responded, ‘Not, interpreter, he is fine’. Therefore the Tribunal continued the hearing after directing the interpreter to stop the proceedings if he needed to do so to be able to interpret accurately for example, if people were speaking too fast or he didn’t understand something, and cautioning him that the Tribunal needed Ms Huang to understand what was going on as clearly as if she was speaking English.

10 As to Ms Huang being self-represented, the Tribunal notes that it had encouraged Ms Huang in case conferences and at the commencement of the hearing to obtain representation through her union which had represented her in the AIRC proceedings, or through avenues such as Legal Aid NSW or pro bono schemes. However, it eventuated that the hearing proceeded with Ms Huang representing herself, though she stated that she had received some assistance from Legal Aid NSW in the preparation of her case.

11 The Tribunal is statutorily obliged to conduct an inquiry into each complaint properly referred to it, and may direct the attention of a party to issues fairly arising from the evidence but not raised by that party: Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at para 30. Accordingly, throughout the hearing, the Tribunal assisted Ms Huang in presenting her case for example, in explaining to her what issues she needed to address, and that she needed to go through all the Respondent’s statements and listen carefully to the evidence given in the hearing to work out what questions she needed to ask the respective witnesses in cross examination.

12 The Report of the investigations carried out in respect of the complaint conducted by the Board (the President’s Report) was admitted in full into evidence in the early stages of the Tribunal hearing.

13 At the commencement of the Tribunal hearing, Ms Huang stated that she only alleged discrimination on the grounds of sex and victimisation by the Respondent. Accordingly, the Respondent led evidence as to these issues, and the Tribunal has decided the case on these issues. However, after considering the matter, the Tribunal has also considered in its decision whether discrimination occurred on the grounds of race and disability because these grounds were included in the referral to the Tribunal by the President.

14 In addition to the oral and written evidence provided by Ms Huang herself, the Applicant relied on the oral and written evidence of former Rheem employees and union delegates William Zhang, Sioe Lian Lim, and Joseph Sultana, former Rheem employees Peng Jin, and Yuan Jiang, as well as letters from Dr Shaun Grantham, Mr Tan, Dr Fung, Dr Singh, and Dr Tony Garland, reports from Dr Moore and Dr Tim Mander Jones, and a petition by workers on the afternoon shift at Rheem.

15 The Respondent relied on the written and oral evidence of Yvonne Eileena Lejtman (Ms Huang’s superintendent), William Reardon (Ms Huang’s supervisor), Manuel Kouyoumdjian (Mr Reardon’s assistant), Francesco Gabriel Riitano (supervisor, Rheem), Raymond Charles Borg (Occupational Health and Safety Coordinator, Rheem), Robert Meyer (Manufacturing Manager, Rheem), and Peter Ross (General Manager, Human Resources, Rheem), as well documents including records of counselling in relation to Ms Huang, a chronology of events compiled by Mr Ross, a map of the Rheem factory site, photographs and a video of the burner cell table job carried out by Ms Huang, the transcript and decisions of the AIRC proceedings brought by Ms Huang against Rheem for unfair dismissal, a report dated 7 February 2005, by Jaqueline Winton, and a paper ‘Women workers and gender issues on occupational safety and health’, by Valentina Forrestiere, International Labour Organisation, addressing the issue of gender in allocation of work.

16 The Tribunal notes that the Respondent had stated in the case conference of 30 August 2004 that it intended to call evidence from Mr George Goshan, Mr James Addo and Mr Kevin Dempsey and in the hearing, the Respondent’s Counsel queried why Mr Lam, Ms Huang’s leading hand, had not been called by Ms Huang to give evidence, as he had been in the AIRC hearing. Mr Ross stated at the hearing that Messrs Goshan, Dempsey and Addo were no longer employed by Rheem and Rheem could not locate them, and the Tribunal accepts his explanation as genuine, as it accepts Ms Huang’s explanation that Mr Lam was concerned about giving evidence against his current employer was genuine.

17 One of the major issues in the hearing was whether or not Ms Huang had taken reasonable and authorised absences from her work station.

18 Ms Huang said that she commenced work at Rheem on 27 January 2000. She thought she was a good worker. She said that her problems began on 12 November 2002 after she was counselled about a toilet break.

19 Ms Lejtman, Mr Reardon, and Mr Kouyoumdjian, gave evidence that they had received a few comments about unauthorised absences by Ms Huang before 12 November 2002, and Ms Lejtman also said that Ms Huang had come to her attention as one of three women who showered in work time. Also, Ms Lejtman and Mr Reardon stated in the hearing that the reason they went looking for Ms Huang on 12 November 2002 was that they were told by her leading hand that she had left the line without notifying him and they were aware that she had done a similar thing on the previous working day, 8 November 2002.

20 Though it had been an agreed fact at the case conference on 30 August 2004 that in late 2002 Rheem enforced the new ‘siren to siren’ policy which eliminated two twenty minute breaks, initially in the hearing Ms Huang said that the change in policy as to cessation of the two extra toilet breaks was not explained in a way she understood. However, subsequently she said that pursuant to the discussion in the Toolbox meetings, she was aware from August 2002 that the two extra toilet breaks had been stopped.

21 The evidence of Mr Reardon, Mr Kouyoumdjian and Ms Lejtman was that after the introduction of the siren to siren policy, Ms Huang and others took absences from the line which were unauthorised, and unreasonably long, with no explanation. In Ms Huang’s case, Mr Reardon, Ms Lejtman, Mr Meyer and Mr Ross, said that when asked about these perceived overly long and/or unauthorized absences, Ms Huang said this was ‘lies’ and gave no explanation, apart from on 12 November 2002 when Ms Huang said she had pain, and Ms Lejtman said she did not accept that period pain justified the 20 minute break taken by Ms Huang.

22 Mr Reardon, Mr Meyer, Ms Lejtman, Mr Ross, and Mr Zhang gave evidence that other workers, apart from Ms Huang, had been disciplined for unauthorized and/or unreasonably long absences from the line. However, the evidence of Ms Huang, her witnesses, Ms Lejtman, Mr Reardon and Mr Ross, was that Rheem’s actions against Ms Huang were its most extreme action taken in the matter of absences because it involved not only counselling, but also a requirement imposed only on Ms Huang that she obtain authorization from her supervisor for absences, and ended in her dismissal. Ms Lejtman, Mr Reardon, Mr Meyer and Mr Ross stated that this was because while others complied with the siren to siren policy after one or two counsellings, Ms Huang continued to take overly long and/or unauthorized breaks from the line.

23 Although in her initial claims to the Board and to the Tribunal Ms Huang suggested that only Asians were counselled by Rheem, in the hearing Ms Huang did not pursue this claim. The Tribunal notes that when Ms Huang’s witness Mr Peng was asked in the hearing why he had stated in his written statement that ‘Yvonne always threatened to give counselling … specially to Asians’, he said the basis of his statement was that when Ms Lejtman commenced work at Rheem, she told him ‘Our Asians should cooperate with her’, and ‘she mentioned many times Chinese community’. Mr Reardon gave evidence as to Rheem being a multicultural workplace where ‘We compromise …When there’s a genuine need for an individual, male, female, whatever it is, we generally try to accommodate them and it’s reasonable and fair when it’s a one off or a significant event’. Mr Sultana said he didn’t think Ms Lejtman had a problem with Asians, just with Ms Huang, whom she ‘just disliked for some reason’. Mr Ross’ evidence and Exhibit ‘T’ tendered by him in the hearing as counselling carried out by Rheem for ‘long breaks or unauthorised absences from the job’, indicated that apart from Ms Huang, the others counselled as to this matter were males from a variety of backgrounds (three Asian, one Middle Eastern, three Maltese, and one African).

24 Since Ms Huang has claimed that on 12 November 2002 the reason she had taken a longer than usual break was because she was suffering pain with her period, she was asked about the nature of her period problem. Ms Huang said it was ‘a family problem’, and consisted of stomach pain after eating cold food on the first day of a period. She said that she didn’t often suffer this after she had children but on 12 November 2002, she had her period and had eaten cold watermelon, and she suffered the problem. Ms Huang said that apart from this one occasion, her period problem was not the cause of her having to take additional time on a toilet break. Ms Lejtman, Mr Ross and Mr Meyer said they were unaware of any such problem, and did not see any medical certificates until Rheem received the correspondence from the Board after Ms Huang had been dismissed. Mr Sultana and Mr Kouyoumdjian, stated they could not recall Ms Huang having mentioned any medical condition.

25 Ms Lejtman said that when she met Ms Huang on 12 November 2002, it was the next working day after she had found Ms Huang reading the newspaper in working time and so she informed Ms Huang ‘that it’s another long break, about 20 minutes’, then asked her to attend a meeting that evening with her union delegate to discuss in detail what had happened. She said that Ms Huang did not give her any explanation of why she had been absent so long or why she was between buildings. Ms Huang agreed that when she met Ms Lejtman on 12 November 2002 and was told to attend counselling because she had been absent for 20 minutes, she didn’t tell her she had pain, but she said this was because she ‘was so angry’ that she ‘could not speak, utter a word… could not find a word in English’. She also agreed that she had not immediately given a medical certificate as to her having period pain on 12 November 2002 because it was not needed under company policy.

26 As to the time she generally spent in the toilet, the Tribunal notes that Ms Huang’s evidence was inconsistent. On the one hand, she initially said that normally she didn’t need more than ten minutes for a toilet break. She also said that in mid-November 2002, she knew that the company wanted her to keep her toilet breaks to between five to ten minutes, that the time she spent in the toilet was ‘around the same as everyone, male or female, in the toilet’, ten minutes was reasonable for a toilet break, and that the allegation that she often left the line for more than 10 minutes was ‘fabrication’ by Ms Lejtman. On the other hand, she said her toilet breaks were 10 to 15 minutes and she never took any longer than 15 minutes, and it took her this time because Rheem was a big factory, the toilets near her burner cell work station were dirty and had no toilet paper, and to get to the toilets in another building took her two minutes’ walk each way. Also, she said she took longer sometimes going to the toilet after 12 November 2002 because she was stressed with being watched, followed, waited for, and timed ‘many, many times’ by Ms Lejtman, her supervisor, Mr Reardon, and his assistant, Mr Kouyoumdjian, and by the procedure required for her leaving the line. It was especially stressful because she had to tell her leading hand, who in turn had to seek authorization for her from her supervisor on the walkie talkie by saying ‘Nora go to toilet, Nora go to toilet’, and this procedure meant that everyone in the factory knew and laughed each time she needed to go to the toilet since in every section the leading hand had a walkie talkie, and everybody overheard the request for authorisation.

27 The evidence given by others as to Ms Huang’s length of toilet breaks at Rheem was as follows: Mr Lim said he attended the meeting on 12 November 2002 as a union delegate at which Ms Lejtman mentioned that Ms Huang had taken around 20 minute for a toilet break and when he asked Ms Huang whether this was true, she told him she didn’t know how long she had been. Mr Jiang said he observed Ms Huang go to the toilet for ‘about 10 minutes’; however, he also said that though he worked ‘quite close’ to Ms Huang, he didn’t work in the same area as her, and as well, he said he couldn’t be sure that he didn’t miss a time that she went to the toilet and didn’t ask anybody. Mr Kouyoumdjian said he observed Ms Huang was absent from the burner cell table, timed her as being away ‘some 25 minutes’ till she came back, and when he asked her where she had been, she said ‘I was only gone five minutes’, and no explanation was offered. Ms Lejtman said that she herself timed breaks by Ms Huang which were longer than 10 minutes, with no explanation being offered, including breaks on 12 November 2002, 18 November 2002, and 19 November 2002. Mr Reardon said that from his observations, Ms Huang took ‘too long breaks’ on a number of occasions.

28 As well, the company kept records of the times Ms Huang took on toilet breaks and whether or not she first had obtained authorisation for her absence. The evidence in the hearing as to the company keeping records of Ms Huang going to the toilet included the following: Ms Huang said that Mr Kouyoumdjian, Ms Lejtman and Mr Reardon used to follow her to the toilet. Ms Lejtman said she had recorded information in her work journal about some of Ms Huang’s absences, including absences she observed for herself in November 2002, and that the meeting on 16 May 2003 discussed ‘some data’ relating to absences recorded in emails sent to her by George Goshan. Mr Reardon said that he observed the length of the break on 12 November 2002, and after 12 November 2002, when he was made aware that Ms Huang wished to leave her work, either he or Mr Kouyoumdjian and ‘later George’ would monitor what time Ms Huang returned from the break. He said that at the time, Mr Goshan and Mr Kouyoumdjian wrote down the times involved and put them in an email, and he passed the information collected by himself, Mr Kouyoumdjian and George, to the management for the meetings. He said that he felt that Mr Goshan’s records would be accurate because he ‘was a reliable person’. Mr Reardon said that the reason that Ms Huang was monitored and details of absences recorded was because she denied all matters put to her so ‘we had to continually try to prove our case’. Mr Kouyoumdjian said he did not follow Ms Huang to the toilet and time her and he was not aware of others doing so.

29 Ms Huang said the figures given in Rheem’s records of counselling her were wrong, and when she and the union asked to time the breaks independently, they were refused. Mr Sultana and Mr Lim also said that the union questioned the company records of Ms Huang’s toilet breaks, and their request to make independent records was refused by the company. As to figures presented to Ms Huang on 19 November 2002, Mr Ross and Ms Lejtman each referred to notes giving details of topics discussed, reactions of participants, and conclusions, which notes they said had been taken of each meeting with Ms Huang. In Ms Lejtman’s case, her record was in a red bound journal in which she said she had made notes of all her substantial work conversations after starting at Rheem. In respect of calculation of the absence on 23 November 2002, Ms Lejtman said that on 23 January 2003, she estimated the length of the absence from times given to her by Mr Lam who saw Ms Huang leave and Mr Reardon who saw Ms Huang return. Mr Ross and Mr Meyer agreed that at the meeting on 16 May 2003 the company didn’t disclose details as to collection of the data of Ms Huang’s absences in the previous two weeks, but Mr Ross said this was because ‘There was no obligation on us to provide who produced certain information’ and Mr Meyer said this was because he found Ms Huang’s denials unsatisfactory, and he ‘had no reason to doubt the veracity of the timings’.

30 As to the authorisation procedure imposed on Ms Huang by Rheem after 19 November 2002, Ms Huang initially said the procedure which she understood to be required, and which she followed, was that she should tell her leading hand who would then tell her supervisor, and that she did not have to wait for authorization before she left. Subsequently she said that after she received the letter from Mr Rob Meyer dated 16 April 2003 she clearly understood that she needed approval from her supervisor, or if the supervisor was not available, Ms Lejtman.

31 Ms Lejtman, Mr Reardon and Mr Ross each said that the procedure for Ms Huang’s breaks from 19 November 2002 was that Ms Huang should wait for permission from her supervisor or when her supervisor was not present, her superintendent, Ms Lejtman, before leaving her work station, and that the supervisor or superintendent was contacted by the leading hand on the walkie talkie. They each said they considered that Ms Huang understood this procedure very well. Ms Lejtman, Mr Reardon, and Mr Sultana gave evidence that initially, as Ms Huang asserted, the walkie­talkie was used to say Ms Huang wanted to go to the toilet, but after a week or two, it was recognised this was embarrassing to Ms Huang and thereafter, the leading hand just asked the supervisor to come to the section. Mr Reardon said that after this change, ‘when it had to be discreet’, Ms Huang had to wait a brief period of minutes while ‘until somebody came to the area’.

32 As to the incident on 24 April 2003 when Ms Huang was told to go home on full pay because Rheem alleged she had not followed the procedure for authorised absences from her work line, Ms Huang initially she said she had followed the procedure as she understood it applied to her, that is, telling her leading hand who would then tell her supervisor, and that she did not wait for authorization before she left because this was not necessary. Then after agreeing in cross examination that after she received the letter from Mr Rob Meyer dated 16 April 2003 she clearly understood that she needed approval from her supervisor before she left the work line, she said that on 24 April 2003, she left before receiving authorisation from her supervisor because she needed to go to the toilet in a hurry.

33 Ms Lejtman said that on 24 April 2003, she saw Ms Huang come ‘from the toilet coming back towards the presses’, and asked her ‘why she didn’t wait for supervision say agreement that she can go for the toilet because that’s the agreement which you had’. She said that Ms Huang just ignored her. Ms Lejtman said that on this particular day, it was Easter, Mr Reardon was on leave, she had no time to engage in a meeting, plus they couldn’t organise a meeting because there were no union delegates present. Therefore, to ‘avoid any kind of conflict’, she wanted ‘Nora go home with full pay and we’ll meet on the first working day’. When Ms Huang refused to leave the site, Ms Lejtman called a security guard and the only supervisor on site, Mr Riitano, but ultimately Ms Huang remained at Rheem, though ‘she didn’t operate any equipment’. When asked why she called the security, Ms Lejtman said she was just following ‘procedure’. Mr Riitano’s evidence was consistent with Ms Lejtman’s evidence.

34 The company had alleged in its points of defence that other instances of unauthorised conduct had occurred including that Ms Huang and two others took a shower in work time, she chewed an apple at her work line in work time, and on 8 November 2002 Ms Lejtman found her in work time reading a newspaper in the ladies’ toilet area. Ms Huang responded that she did take a shower, but said it was in the 20 minute break before the siren to siren policy was enforced. She conceded that on one occasion she had been chewing a bite of apple on her return to the work line. As to the newspaper incident, Ms Huang said that Ms Lejtman did come into the toilet area as she was leaving, but it was her co-worker Kerry, not herself, who was reading a newspaper.

35 Ms Huang said her productivity was unfairly compared with that of a male, Mr Dempsey. She said that in February 2003, after she had commenced work on the burner cell table, Ms Lejtman said she would be dismissed if she could not produce the same quantity of burners as the other person in the equivalent position on the burner cell table, Mr Dempsey, and Mr Reardon also said to her that if she continue ‘this way’, she would be dismissed. Mr Sultana said he attended a meeting on 11 February 2003 at which Ms Lejtman said there would be a test for two days, and if Ms Huang’s number was not the same as Mr Dempsey’s, she would be sacked. Ms Lejtman denied she had threatened Ms Huang with dismissal if she didn’t match Mr Dempsey’s output, and Mr Reardon also denied he threatened dismissal if her productivity didn’t rise, though he agreed that he had counselled her about her conduct generally.

36 Ms Huang’s evidence as to whether or not it was reasonable to compare her productivity against that of Mr Dempsey was somewhat inconsistent. She said it was unreasonable to compare her output with that of Mr Dempsey because he was younger, stronger and male, and the fastest worker in the factory. However, she also agreed that she had applied for the job and in doing so, she had told Ms Lejtman she had experience in doing burner cell assembly, and she thought she could do the job. She also said that when Mr Dempsey was working at a usual pace, she could match his output and that on an ‘Average shift, compare, we do similar [numbers]’. Also, she said she believed that the figures produced to her by Rheem at the time of the comparison between the output of her and Mr Dempsey, allegedly showing she produced less burners than Mr Dempsey, were ‘discrepancies so big it’s not true... It’s … fabricated. I don’t think it has something to do whether I’m a woman or not’. When asked by the Tribunal why she thought Rheem would fabricate figures, she responded, ‘Because that time even all the time pick me, she want to use the figure force me to harassment and expelled me from the factory. Not same number she can sack me’. However, she also agreed on cross examination that she had not at any stage been counselled about her productivity, and after the figures produced by Rheem indicated that her productivity had risen, the issue was not raised again.

37 Ms Huang said it was unreasonable to compare her output with that of Mr Dempsey because in the period when their productivity was being compared, he was working faster than normal and grabbing all the parts. However, she also said that Mr Dempsey did not take more than one burner at a time. She stated that trying to match his output, she became stressed, had trouble sleeping and injured her arm and back, but she also stated she did not tell the company that she was injured, and she agreed on cross-examination that she knew she could have asked to be moved because she knew her co-workers Dawn and May had asked to be moved on the ground of not being able to do the job physically, and they had been moved. She said she didn’t think to ask to be moved because she was concerned about her job.

38 Mr Kouyoumdjian, Mr Reardon and Ms Lejtman said that the comparison between the output of Ms Huang and Mr Dempsey arose because a quality problem was found on the burner cell table, and through trying to establish who was responsible for this quality problem, it was realized that Ms Huang was producing far less burners than Mr Dempsey. However, while Mr Kouyoumdjian said Ms Huang was responsible for the faulty burners being produced, Mr Reardon said both had denied causing the problem and when checked, it was found that there was a problem with the way that both people were finishing the burners, the problem was addressed by training, ‘and the problem went away’.

39 Ms Lejtman said that the reason that Ms Huang’s output was compared with that of Mr Dempsey was because Mr Dempsey happened to be the other person doing the same job as Ms Huang.

40 Mr Borg gave evidence that he was the OH&S management advisor at Rheem. He said that he knew the tasks Ms Huang had performed at Rheem, and he considered the tasks she performed on the burner cell table to be ‘easily the lightest of the 3 jobs’ she had performed at Rheem and ‘one of the lightest on site, often used to accommodate people on light or restricted duties’. He said he had commissioned a report by an occupational therapist, Ms Winton, and this report was submitted. Ms Winton’s report analysed the elements of each position on the burner table at Rheem, and concluded that the position in which Ms Huang (and Mr Dempsey) worked ‘does not need to be gender specific’. He said that Rheem ‘still to this day’ has ‘male and female employees with medical conditions working on the burner table duties’, including two females and one male with various injuries performing the role Ms Huang had performed on the burner cell table.

41 Mr Reardon also said that there were other women currently doing the job that Ms Huang used to do on the burner table.

42 Mr Meyer said that in Ms Huang’s position on the burner table, in order to produce a burner every 26 seconds, she only had to produce one bit every 20 seconds, and this, in his opinion, was a sufficient comfort zone, what he regarded as ‘a light loading’. He said that if Rheem was looking at a productivity issue with an employee, it would look at an average time, rather than a time that a particularly fast person, would do a task.

43 Ms Lejtman said that in December 2002, she selected Ms Huang for the job because she had said in her application that she had previous experience at working on a burner table and because she didn’t have any injuries which could be aggravated working on the burner table. She and Mr Reardon said that if Ms Huang had not been successful in her application to join the burner section she would have been assigned to another section, and if she had said she was having physical difficulties doing the job, she would have been moved to another section. However, they said, Ms Huang did not at any stage say her arm was sore or mention any physical problems which may have explained why her productivity was apparently so much lower than Mr Dempsey’s output. Ms Lejtman said in this situation, all the company could do was collect data and see whether the data showed any change in productivity.

44 As to Ms Huang’s claim that the figures presented by Rheem in the comparison between Ms Huang and Mr Dempsey were fabricated, the Tribunal notes that Mr Sultana and Mr Zhang said the union did not trust that the output numbers were being accurately counted. Mr Kouyoumdjian’s evidence as to how the count was made was as follows. He said after the quality problem arose, he told Mr Dempsey and Ms Huang what the tester had told him, and then he asked Mr Dempsey to ‘mark all the burners that he assembled’ with a texta. Mr Kouyoumdjian said he himself ‘would go through every half hour, or every three quarters of an hour, … [and] go up and check and verify that the numbers matched up and/or what was happening to the assembly, so that way [Mr Dempsey] couldn’t be putting extras in to discredit the numbers’.

45 Mr Kouyoumdjian said he reported on the productivity of the burner table in emails to Ms Lejtman on 4, 6, 7, 10, 13, 17, 20 and 24 February 2003 and 6 and 13 March 2003 comparing the quantity of burners produced by Ms Huang and Mr Dempsey. Ms Huang noted that the emails may have been fabricated after the event since they ‘never turned up’ at any meeting she had with company representatives, and she had not been shown these previously.

46 The Tribunal notes that emails said to have been sent by Mr Kouyoumdjian were tendered. An email of 13 March 2003 was tendered from Mr Kouyoumdjian which stated [quoted verbatim] ‘These numbers are factual as I have noticed that Nora has slowed down considerably too last weeks performance [and] there is a very accurate way of measuring who does how many burners (only on square gas units). This can be calculated by counting the backing paper off the stickers that are placed on the burners’. In the email of 6 February 2003, he stated ’70 to 80 burners made in total 58 finished of by Kevin 24 finished by Nora’; in the email dated 10 February 2003, he said ‘total burners produced today 537 Finished off by Kevin 319 balance finished off by Nora 219’; in the email of 17 February 2003, he notes that on 14 February 2003 ‘100 round Gas 66 by Kevin and 51 by Nora’; email dated 4 February ‘Production 180 total sq gas 180 burners for 260 lt 16 stella 110, produced by Kevin stella burners 71 units square burners and 260 lt 149 units produced by Nora stella 39 square gas and 260 lt 39’.

47 Initially, Mr Kouyoumdjian said he did not tell Ms Huang to do the marking, or tell her that he had asked Mr Dempsey to do the marking because he wanted to avoid confrontation with her since she often responded negatively. Subsequently he changed his evidence to ‘I’m sure if I asked Kevin to do it I would have asked Nora to do it as well. I would have given them both the opportunity to count the number of units that they had made’. Mr Reardon said Mr Dempsey was asked to mark the burners he made and Ms Huang was not told of this because it was just a procedure to identify a quality problem and ‘to identify which person we needed to talk to’. Mr Reardon said that when the problem changed from a quality issue to a quantity issue, Mr Dempsey was asked to retain the sticker from the burner and Mr Kouyoumdjian would take them off Mr Dempsey and count them up to check how many he had made and how many Ms Huang had made.

48 Mr Reardon said Mr Kouyoumdjian, his assistant, checked the accuracy of Mr Dempsey’s count, and he himself only verified the count himself on one occasion, when there was a ‘mass site meeting’ and the assembly line was shut down. He said that on the occasion he checked, the numbers were honest, and the results of the counts were ‘Initially it favoured Kevin, probably a split of 70/30, 60/40’, and ‘there was insufficient burners being produced’, and later, though he couldn’t remember when, ‘it was pretty close to 50/50’ and ‘things balanced up, the stoppages in that area dissipated’. He said Mr Dempsey was an ‘average’ worker. He said there was not a ‘significant amount of stock piling’ of burners.

49 Ms Huang also said that she assumed that Ms Lejtman told co-workers of Ms Huang, Arnie, Kevin and Sam, to harass Ms Huang since she saw Ms Lejtman talking to them while they were having a cigarette, and subsequently, Mr Dempsey swore at her ‘more than five times’ in December 2002, and once he turned the screwdriver the wrong way so she hurt her hand, and he had never done this before, Sam took a stellar jacket away more than ten times when they were working together on the stellar jacket line, and Arnie complained about her and asked her to do what was usually a man’s job using a screwdriver more than ten times. The Tribunal notes that Mr Peng stated that on two occasions, he witnessed Mr Dempsey and Arnie swearing at Ms Huang; he said he did not know the reason for this. Mr Jiang said that in February or March 2003, he had ‘observed at least twice Kevin shouted coarse language at Nora when they competed in taking parts because when Kevin grabbing the parts, the part fall in Nora’s side, and Nora just complain and then ­ and then the quarrel start’. He said that Mr Dempsey did not raise his voice ‘that high’, but he used ‘some coarse language’.

50 Ms Huang said she had suffered injury because the company had not reacted to her complaints of needing a sleep study and to her notification of injury to her back and arm. She said she gave the certificate as to the sleep study to the company in January 2003, but they only offered her counselling. She said she gave the certificates as to her back and arm injury to the company on 16 April 2003 to Rob Bell, the company’s safety injury person, who asked her to go back to the doctor again for a new certificate, and then in a meeting with Rob Bell, Rob Meyer and Ms Lejtman she was told the form was ‘terrible’ and to get a new form from her doctor. Ms Lejtman said that though she was aware of a back injury Ms Huang had in 2001, she was not aware of these alleged injuries/forms before she saw them in the documents lodged at the AIRC case. When Ms Huang pointed out that Ms Lejtman had signed the complaint forms, Ms Lejtman said that though OH&S complaint forms were given to her and Mr Reardon to sight and sign, she wasn’t involved in OH&S matters, and she did not have the power to say someone could or could not see a doctor.

51 As to her complaint to Rheem about Ms Lejtman, Ms Huang indicated that she did not believe it was taken seriously as an EEO complaint. She said that on 17 February 2003 she made a complaint about discrimination to Ton, the quality control officer in the cylinder section, because she had been told by Ms Lejtman that she had to process the same number of units as Mr Dempsey or she would be ‘sacked’, she couldn’t ‘carry on competing with him’, and she was worried about losing her job. She said that when she did not get a response from Ton, she felt very stressed, and after somebody told her she could also make a complaint to Ms Patterson, she resubmitted the complaint to Ms Patterson on 7 March 2003. She said that then ‘the company presided over the meeting on 4 April but the meeting did not resolve anything’, because at the end of the meeting Peter Ross said ‘that there was nothing to be complained about’ and her response was that if the company did not want to ‘solve the problem’, there was no point in her having attended the meeting.

52 Ms Lejtman gave evidence that she first knew of the internal complaint made by Ms Huang to the Rheem EEO contact person, Christine Patterson, at the beginning of March 2000 when Ms Patterson contacted her and interviewed her about it. Mr Meyer said he investigated this internal complaint by discussing the matter in general terms with a range of supervisors ‘to elicit any feedback or any clues as to whether this type of behaviour was typical of Yvonne Lejtman’. However, he said he bore in mind two things. First, he was ‘ever mindful that Rheem has a process of EEO’. Secondly, the allegations ‘seemed completely out of character with Ms Lejtman’, who he perceived as a manager whose ‘whole aim is to see how she can foster an environment of team working and co-operation on her shift’. He said he felt EEO was more Mr Ross’ area as it fell ‘more under the HR area’. The Tribunal asked him whether he was aware that the Rheem EEO policy stated that the manager himself should investigate, rather than a contact person; he responded ‘Is that under the company policy?’

53 Mr Ross said that when Ms Huang complained to ‘Christine Patterson, the payroll supervisor, who’s an EEO contact officer’, Ms Patterson spoke with him, and he in turn discussed the matter with Mr Meyer, Ms Lejtman, Mr Reardon, James Addo the union delegate, and, he thought, also with Mr Phil Whitburn, the general manager of operations. After a ‘number of discussions’, it was decided to have the meeting where Mr Addo chaired ‘to try and clear the air and go forward.’ He said his notes indicated that on 4 April 2003, Mr Addo opened the meeting by saying that Ms Patterson had assessed the problem as ‘performance related and suggested the unions get involved’. He said the meeting didn’t achieve anything because Ms Huang would not look at or talk to those present, except for sometimes saying ‘It’s all lies’.

54 Mr Ross said he was the manager of Human Resources (HR) in Rheem, and the HR department was responsible for EEO matters. When Ms Huang asked Mr Ross whether the EEO process had been applied he responded ‘Yes’. Ms Huang asked him whether he thought the company’s treatment of the complaint lodged by her was ‘fair’, and he said ‘Yes’.

55 The Tribunal noted that in fact, the Rheem written policy on discrimination and harassment issues didn’t appear to have been followed in Ms Huang’s case; Mr Ross said he didn’t agree. The Tribunal noted that the evidence indicated that several steps had not been followed as per Rheem’s written EEO policy. Mr Ross responded ‘I fear you are undervaluing the meeting with James Addo’. However, he conceded that contrary to the EEO policy of Rheem, nobody sat down and clarified fully what Ms Huang’s complaints were, and no one supported her, made sure she understood what was happening and separately interviewed her, and no report was generated from the investigations. He said that Ms Huang’s complaint was not seen as an EEO complaint because ‘there was a lot of inappropriate accusations against Yvonne, and the fact that we were running an awful place…There was no mention of, from my recollection, of discrimination on any of the grounds, disability, sex, race’. He also said that management ‘didn’t see it was worth talking about’ the complaint to Ms Huang, and ‘had difficulty understanding the nature of the complaint’.

56 Ms Huang claimed that her dismissal was victimisation because she had complained to the Board. She said that she complained to the Board on 29 April 2003, and on 1 May 2003, ‘Pam’ from the Board told Ms Huang that when she had telephoned Mr Ross saying the Board would like to resolve the issue, Peter Ross said ‘it was too late, Nora had already been sacked’. Ms Huang said that when she was told to leave the factory on 24 April 2003, she felt this was the same as being dismissed, and when Mr Ross said to her on 1 May 2003 that ‘the Board not a court’, she understood him to be intimidating her, to be telling her she would be dismissed if she complained to the Board.

57 Ms Lejtman, Mr Reardon, Mr Meyer and Mr Ross all said the reason for the dismissal was unauthorised and/or unreasonably long absences from the work line without explanation.

58 Mr Meyer said he wasn’t ‘aware of the timings’ of when he first became aware of the Board and Tribunal proceedings. Mr Ross said he first became aware that Ms Huang had made a complaint when Ms Richards of the Board telephoned him and told him that Ms Huang had made some complaints, and he only became aware in detail of the nature of the complaints and Ms Huang’s medical certificates, when he received the first written documentation from the Board on 19 May 2003, after Ms Huang had been dismissed.

59 As to Ms Huang’s claim that she was effectively dismissed when she was asked to leave Rheem on 24 April 2003, Mr Ross said that after the Easter incident, at the formal counselling of Ms Huang on 29 April 2002, the outcome of that meeting was to give a repeat of the final warning for the breaches, and it was an option at that point to proceed to termination. However, he said that he and Mr Meyer decided not to proceed to termination, but rather, ‘To give Nora yet another chance to cooperate and save her job’. He said that he also had an informal chat with Ms Huang on 1 May 2003 in which he asked her why she was dissatisfied with everything, she said she felt she was being treated like an animal and it was all unfair and lies, and he asked for her cooperation, or she may lose her job, and ‘the company didn’t want to take away her job.’

60 As to why Ms Huang was asked to comply with more onerous procedures for absences than others and her productivity was monitored more closely than others, William Zhang said he considered the issue was management wanted to change the culture and Ms Huang was seen as easy person to target, weak because she didn’t understand much English, and did not communicate well, even, he found, with him in her own language. However, he also said that Ms Huang and Ms Lejtman had a ‘conflict of personalities’, and he considered Ms Huang to be ‘very stubborn’. Mr Jiang said he didn’t know why Ms Lejtman targeted Ms Huang though he also said, as did Mr Sultana and Mr Lim, that Ms Huang and Ms Lejtman did not like each other and that Ms Lejtman targeted people she didn’t like, irrespective of their race or gender.

61 Mr Ross, Mr Reardon, Mr Riitano, and Mr Meyer all indicated that in their opinions, Ms Lejtman was a good and fair manager. Mr Reardon said that though Ms Huang was the only worker he could think of whose productivity had been monitored to the extent in which Ms Huang’s productivity was monitored, he thought this was because every time she was criticised, she denied everything and said it was ‘all lies’, and so Rheem felt it had to monitor her ‘to prove what we observed’. Mr Meyer said he was ‘absolutely unaware of…targeting somebody in terms of trying to drive them out or coerce them’. Mr Kouyoumdjian said he did not notice Ms Lejtman had any problem with women. Mr Riitano said Ms Lejtman was his ‘direct boss’, and had been so for over two years, and he had found her to be ‘very diplomatic’, and not discriminatory in her dealings with staff.

62 Ms Lejtman described the relationship between her and Ms Huang as ‘non-existent’ but said she had been managing people for about 10 years, and as a manager, she put her personal feelings on the side. She said the reason for counselling, warning and finally dismissing Ms Huang was because ‘Nora didn’t want to cooperate …She always came for the meeting with no response whatsoever. Except all lies, not true. How could we meet her in half or resolve something if we didn’t know what was the problem?’

DECISION AND REASONS FOR DECISION

Findings as to credibility

63 Given the obvious conflicts in evidence, the Tribunal has considered the credibility of each of the witnesses who gave evidence in the hearing. The Tribunal is not required to give detailed reasons as to why a particular witness is not believed: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham, 168 ALR 407, per McHugh J at para 67.

64 The Tribunal notes that Ms Huang was frequently inconsistent in her evidence, including on matters such as how long she took on absences from her work line, and her evidence on some points was implausible, including that she was not given a chance to explain herself as to absences, and that she did not know the reason she was asked to leave Rheem premises on 24 April 2003. After considering all of Ms Huang’s evidence, the Tribunal finds that Ms Huang was frequently unreliable in her evidence.

65 Mr Zhang’s assistance was of limited assistance given that he stated on several occasions that he could not remember events because of the time lapse between the events and the hearing, and also there were some inconsistencies in his evidence, including as to the extent of his contact with Ms Huang before he became a union delegate.

66 Mr Sultana’s evidence was of limited value since he did not work in the same building as Ms Huang. Also his memory was unreliable: asked if he could recall an alleged instance involving Ms Huang, he responded, ‘No, jeez, unless it’s written down here. You’re talking a long time’, and he couldn’t remember how many times he himself had been counselled at Rheem.

67 Mr Peng’s evidence was of limited value since he said he did not often work in the same area as Ms Huang at Rheem. Further he had sued Rheem in the AIRC, and though the Tribunal accepts he attempted to be impartial, the Tribunal also notes that his evidence that ‘everybody exceeds 10 minutes when they went to toilet’ at best indicated a tendency to exaggerate.

68 Mr Lim stated that he was dismissed by Rheem, he had sued Rheem, unsuccessfully, and he said that since being dismissed, he had been out of work and stressed, and he had ‘lost a lot of memory’. After considering all the evidence of Mr Lim, it finds that his evidence was of limited value given his self-admitted memory problems.

69 Despite the friendship between Mr Yuan Jiang and Ms Huang evident from his role as a support person to her in the hearing, the Tribunal finds he was a credible witness. Nevertheless, the Tribunal finds that his evidence was of limited value given he was not privy to meetings between Ms Huang and the company, and he did not work in the same area of Ms Huang, and so he could not reliably know how long she took on absences or whether each absence was authorized.

70 Mr Kouyoumdjian’s evidence was inconsistent on key points including how frequently he checked the accuracy of the figures given to him by Mr Dempsey of Mr Dempsey’s productivity. As well, his claim that the figures which he presented to management as to Ms Huang’s productivity were accurate was problematic in some respects given he did not personally check all of Mr Dempsey’s figures, and also because the figures given in his emails often did not tally. As well it was apparent his memory was at best flawed since he did not recall any persons complaining of injury on the burner table despite his having allegedly emailed Ms Lejtman as to Dawn’s injury. After considering all his evidence, the Tribunal finds that Mr Kouyoumdjian was not a reliable witness.

71 The Tribunal notes that Ms Lejtman’s evidence was critical as to the issue of whether Ms Huang had been subjected to unlawful discrimination or victimization. On the one hand, the Tribunal notes that Ms Lejtman conceded in both the AIRC and Tribunal hearings that she did not like Ms Huang. Further, it is unusual, if the red book was a genuine contemporaneous record, that it was not referred to by Ms Lejtman in her statements submitted to the Tribunal and in her evidence to the AIRC hearing. As well, the Tribunal notes that on occasions, Ms Lejtman made a categorical statement and then had to concede this was incorrect, for example, in her evidence as to whether or not the shower incident took place before or after enforcement of the siren to siren policy.

72 On the other hand, the Tribunal notes that Ms Lejtman’s red book was a running list of dates in a bound book (though some not strictly chronological but rather, grouped by subject matter or worker), rather than a loose folder into which pages could have been inserted, and therefore if fabricated, the whole book would have needed to have been fabricated. Also, the concept of Ms Lejtman keeping such a diary was logical, and on inspection the book itself impressed the Tribunal as genuine. The Tribunal notes that overall, Ms Lejtman’s evidence was consistent considering the AIRC transcript, written statement made to the Tribunal, and the evidence in the hearing itself. After considering the matter, the Tribunal finds that Ms Lejtman was a credible witness, and that her red diary book was genuine.

73 Mr Reardon was inconsistent as to how often he checked for accuracy the figures in the comparison of productivity between Mr Dempsey and Ms Huang. Nevertheless, in general, he appeared to be genuine in his evidence and, unlike Mr Kouyoumdjian, he appeared to know the staff he had worked with, and the problems of the workplace. He impressed the Tribunal as a credible witness, and where there are conflicts between his and Mr Kouyoumdjian’s evidence, the Tribunal has preferred Mr Reardon’s evidence.

74 Mr Meyer and Mr Ross overall impressed the Tribunal as credible witnesses in their direct dealings with Ms Huang. Further, in relation to Mr Ross, the Tribunal accepts that the notes of meetings he referred to in the hearing were genuine, contemporaneous notes of meetings in which he participated with Ms Huang. However, the Tribunal finds that Mr Meyer and Mr Ross were remote from the factory floor and so their knowledge of Ms Huang was, to a very large extent, limited to her denials which were considered unsatisfactory, and to what Rheem managers told them, which they said they had no reason to doubt. Also, it was clear that they found it difficult to be objective about the complaint about Ms Lejtman since it appeared inconsistent with their impression of her; as Mr Meyer put it, he saw her as a ‘team building’ manager. After considering their evidence, the Tribunal does not accept as reliable their evidence that each independently and/or impartially investigated Ms Huang’s complaints nor can it be satisfied that they each independently satisfied themselves that the information on which they were relying in dismissing her was genuine. This of course is not critical if they were correct in their assumption that they could trust the information coming to them from their managers was genuine and reliable.

Ms Huang’s claims on the ground of disability

75 Although the Tribunal notes that Ms Huang did not pursue this claim at the hearing, for the sake of completeness the Tribunal has considered whether she was counselled and warned at Rheem in part or at all because she has a disability within the Anti-Discrimination Act 1977 Sections 49A, 49B and 49D. In Commissioner v Mooney (No 2) [EOD] [2003] NSWADTAP 67, the Appeal Panel discussed the definition of ‘disability’ under the Act, and stated:

‘61 The term “disability” is defined in s 4 of the Anti-Discrimination Act . It is a legal definition of disability rather than a list of conditions, diseases, illnesses or injuries which may be used in a medical or allied health context. The definition reflects the approach to disability taken in significant relevant international instruments, such as the Declaration on the Rights of Disabled Persons (see Schedule 5 to the Human Rights and Equal Opportunity Act 1986 (Cth)) . In that Declaration the definition of “disabled person” centres on people who, as a result of “deficiency”, may have a limited capacity to access by themselves “the necessities of a normal individual and/or social life”. Whilst some of the language used in that definition may be dated, it is clear that the definition is not intended to be a categorisation which turns upon medical-style illness, injury or disease classifications. This is also the approach taken to “disability” in the Anti-Discrimination Act .’

76 Ms Huang’s evidence in the hearing as to her period condition was that though she suffered a family problem of pain relating to periods when cold food is eaten, this problem improved after she had children, this period condition did not cause her to need more time for toilet breaks than for other workers at Rheem, male or female, on any other occasion than 12 November 2002. After considering all the evidence, the Tribunal finds that Ms Huang has not established that her period problem while at Rheem was a disability within the Anti-Discrimination Act 1977 Section 4. Further, the Tribunal finds that Ms Huang has not established that Rheem knew, or had reason to know or suspect, about her period problem as an ongoing medical condition since the Tribunal is satisfied that during her employment with Rheem she did not give a certificate to Rheem about this problem, and both management (Mr Reardon, Ms Lejtman and Mr Ross) and the union delegates gave evidence at the hearing that they were not aware of this as an ongoing problem. Accordingly, the Tribunal finds that Ms Huang was not subjected to discrimination by Rheem on the ground of disability within the Anti-Discrimination Act 1977 Sections 49A, 49B and/or 49D.

Ms Huang’s claims on the ground of race discrimination

77 Ms Huang claimed that at Rheem only Asians were counselled and warned. Although the Tribunal notes that Ms Huang did not pursue this claim at the hearing, for the sake of completeness the Tribunal has considered whether she was counselled and warned at Rheem contrary to the Anti-Discrimination Act 1977 Sections 7 and 8 which deal with unlawful discrimination on the ground of race. The Tribunal has considered all the evidence including that of Mr Peng and Mr Sultana that Ms Lejtman just didn’t like some people irrespective of their race or gender, of Mr Reardon that Rheem was a tolerant multi-cultural workplace, and also the record of counselling carried out by Rheem (Exhibit ‘T’) which indicates that the others counselled were of various races. The Tribunal finds that Ms Huang has not established that only Asians were counselled and warned at Rheem, or that counsellings and warnings (or any other conditions or requirements) were imposed on her at all, or in part, because she is Asian. The Tribunal finds that Ms Huang has not established that Rheem treated her less favourably than it did non-Asians in the same or similar circumstances because she was an Asian. Nor has she established that Rheem imposed a ‘requirement or condition’ that she was unable to comply with, and that a substantially higher proportion of non-Asians could have complied with. The Tribunal finds that Rheem did not unlawfully discriminate against Ms Huang in breach of the Anti-Discrimination Act 1977 Sections 7 and/or 8.

Ms Huang’s claims on the ground of sex discrimination

78 The Tribunal notes that in the hearing, Ms Huang claimed that she had been unlawfully discriminated against by Rheem on the ground of sex by the following acts:

She was discriminated against because she had to keep her toilet breaks to 10 minute limit which she could not do because she had a disability, namely ‘female related sickness and health problems’ which necessitated ‘lengthier toilet breaks’.

She was discriminated against because she had to keep her toilet breaks to 10 minute limit which she could not do because she is a woman and women needed longer toilet breaks than men.

In the course of the counselling on 12 November 2002, which was attended by males, Ms Lejtman breached her privacy by getting a copy of her medical record, and discriminated against her by noting in front of the males, that the record said Ms Huang had seen the nurse for period pain, and by answering her question as to what is a ‘period’ with the words, said in a joking way, ‘blood coming’.

After 12 November 2002, Ms Huang’s absences from the work station were monitored, she was subjected to a special procedure of obtaining authorisation for her absences, and as a result, her intention to go to the toilet was broadcast to the whole factory when the supervisor or superintendent was called to authorise an intended toilet break by her.

The company fabricated details of her absences.

On 24 April 2003 she was asked to leave the factory without reason.

Ms Lejtman encouraged colleagues of Ms Huang to harass Ms Huang.

Ms Huang’s productivity on the burner table was unfairly compared against that of a male, Mr Dempsey, and she was threatened with dismissal if she did not match his productivity.

The figures on which the comparison was made between her productivity and that of Mr Dempsey were fabricated.

Her complaint about discrimination by Ms Lejtman was not genuinely investigated by Rheem as an EEO complaint.

79 The Anti-Discrimination Act 1977 Section 24 and 25 deal with unlawful discrimination on the ground of sex. Unlawful discrimination may be direct or indirect.

80 In Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5, the ADT Appeal Panel discussed direct discrimination; the Panel observed,

‘45 It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation…

61 …[The] Act requires that an actual or hypothetical comparison be undertaken in every case of alleged direct discrimination...

83 As we have stated at paragraphs 54-75, in relation to every alleged act of unlawful discrimination the Tribunal failed to determine the following essential questions of fact:

(a) whether the Commissioner’s act fell within the relevant substantive provision of the Act, namely section 8

(b) if ‘Yes’ to (a) whether in so acting the Commissioner treated Mr Aldridge less favourably than it treated, or would have treated, a non-Aboriginal person in the same or similar circumstances

(c) if ‘yes to (a) and (b) whether the Commissioner so acted on the ground of race.’

81 The requirements for succeeding in a claim of indirect discrimination, as set out in Reddy v International Cargo Express [2004] NSWADT 218 at para 51 are that the applicant establish that:

(a) the respondent imposed a “requirement or condition”; and

(b) she was unable to comply with that “requirement or condition”; and

(c) a substantially higher proportion of persons without responsibilities as a carer [for example] comply or are able to comply with that “requirement or condition”; and

(d) the requirement or condition is not reasonable having regard to the circumstances of the case.

82 The Anti-Discrimination Act 1977 Section 4A provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for the reason of unlawful discrimination under the Act.

83 Amery & Ors v. State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404, per Beazley J:

‘60. The appellant at all times accepted that they bore both the legal and the ultimate evidentiary onus in respect of each component of s.24(1)(b). This is correct…

77 …[As to] the question of how to determine whether conduct is discriminatory in contravention of s.24 [the] proper approach to the determination of that question was considered by the Full Federal Court in Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 FCR 251. Bowen CJ and Gummow J, in expressing their agreement with Wilcox J at first instance, said at p.263:

“…the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience…The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”’

84 It is not necessary to show an intention to discriminate: see, for example, the joint judgment of Mason C J and Gaudron J in Water & Ors v Public Transport Corporation (1991) EOC 92-390 at 78, 674.

85 As to Ms Huang’s claim that Rheem limited her toilet breaks to 10 minutes and this amounted to unlawful discrimination, the Tribunal is satisfied that Ms Huang established that after 12 November 2002, she was required to limit her absences from the line for toilet breaks to 10 minutes. The Tribunal finds imposition of a limit for absences for the toilet could fall within Section 24 and 25 of the Anti-Discrimination Act. The 10 minute limit for toilet breaks would amount to direct discrimination if by so limiting her, Rheem treated Ms Huang less favourably that it would have treated a male in Ms Huang’s circumstances or similar circumstances, if it did even in part because of Ms Huang’s sex. The 10 minute limit would amount to indirect discrimination if Ms Huang was unable to comply with this limit, or could only comply with difficulty, and a substantially higher proportion of males could comply with a 10 minute limit than females and the limit was unreasonable in all the circumstances.

86 As to Ms Huang needing more time for a toilet break, first, the Tribunal notes that Ms Huang said that normally she didn’t need more than ten minutes for a toilet break, the time she spent in the toilet was ‘around the same as everyone, male or female, in the toilet’, and ten minutes was reasonable for a toilet break (though she also gave evidence inconsistent with these statements). Secondly, the Tribunal found Ms Huang’s evidence as to her need for extra time on toilet breaks to go to another building because the toilets in her own building were unusable to be unconvincing. This is because it appears improbable to the Tribunal that once time of toilet breaks became an issue, the matter of needing to use toilets in another building would not have been raised by female workers as one needing addressing if the factory was disciplining workers for taking unreasonable length toilet breaks. Also, the Tribunal notes that even if the toilets in the solar building were dirty and had no paper, there were toilets in a building nearer to Ms Huang than the building she allegedly went to on 12 November 2002. After considering all the evidence, the Tribunal prefers Ms Lejtman’s evidence that she used and inspected these toilets and found them clean and that if it had been otherwise, the female workers would have raised this at the monthly OH&S meeting, and is satisfied that there was no need for Ms Huang to go to another building, and spend more time doing this, on toilet breaks. Further, the Tribunal finds that Ms Huang has not established that she needed more time than others, male or female, to go to the toilet.

87 The Tribunal notes that the circumstances of imposing a 10 minute limit for absences on Ms Huang were as follows: From the introduction of the ‘siren to siren’ policy by Rheem in mid-2002, Rheem increasingly stipulated to all its workers that all breaks be of reasonable duration, absent of a satisfactory explanation. The Tribunal is satisfied that this policy applied to all workers, males and females. The Tribunal notes that Ms Huang agreed (at times, including in the hearing) that this ten minute limit, in the absence of illness or other explanations, was not unreasonable. The Tribunal is satisfied that workers, male and female, who resisted the change in policy were counselled, and it was specified, at least to some of the workers, male and female, who were counselled, including Ms Huang, that, in general, Rheem viewed ten minutes as a reasonable time for a toilet break, absent of explanations of illness or the like being given by the employee. The Tribunal is satisfied that before the limit of 10 minutes was imposed on Ms Huang on 19 November 2002, Ms Lejtman had spoken with Ms Huang several times about overly long and/or unauthorised absences, and apart from on 12 November, Ms Huang did not explain why her absences were so long and/or unauthorised. The Tribunal is also satisfied that apart from on 12 November 2002 when she said in counselling that the reason she was longer in the toilet was because she had stomach pain, Ms Huang did not give any explanation when she was asked why she took longer in the toilet and she did not specify to Rheem a particular ongoing problem such as stress or stomach problems necessitating more time in the toilet.

88 After considering all the circumstances, the Tribunal is satisfied that the ten minutes limit on Ms Huang for toilet breaks did not amount to treating her less favourably than a male worker would have been treated in the same circumstances, or in circumstances which are not materially different. The Tribunal is also satisfied that the limit was not imposed on her at all, or in part, because she is a female. The Tribunal is satisfied she could comply with this limit, and that this requirement was reasonable having regard to all the circumstances. The Tribunal is not satisfied that imposition on Ms Huang of her absences being limited to ten minutes, in the absence of a satisfactory explanation such as illness, was unlawful discrimination on the ground of sex within the Anti-Discrimination Act 1977 Sections 24 and/or 25.

89 Ms Huang claimed that her period was described embarrassingly as ‘blood coming’, and her medical record accessed, in the course of the counselling on 12 November 2002. After considering the evidence of Mr Reardon and Mr Lim who recalled a period being mentioned but not the colourful description of ‘blood coming’, and noting that this claim was not made by Ms Huang in her statement to the Board dated April 2003, the Tribunal prefers Ms Lejtman’s evidence as to her description of what she said at the counselling. Further, after considering Ms Huang’s description of the document brought to the meeting, which did not match the medical record tendered to the Tribunal but rather was nearer to the log book, the Tribunal finds Ms Lejtman did not obtain and read out Ms Huang’s medical record in this meeting. Rather she checked Ms Huang’s explanation for her lengthy absence by obtaining the log book of the nurse (which document did not identify Ms Huang by name) and by asking the nurse why Ms Huang had seen the nurse.

90 The Tribunal finds that Ms Huang established that her period was mentioned in front of males in a work meeting and her reason for seeing the nurse was checked. The Tribunal notes that this could amount to unlawful discrimination on the ground of sex if Ms Huang has established that she was treated less favourably than a male would have been in the same circumstances, or in circumstances which are not materially different. The Tribunal finds the comparator to be a personal sex related condition of a male being mentioned in front of women in a work meeting and checking the reason for his seeing a medical professional.

91 The Tribunal notes that the circumstances of Ms Lejtman mentioning Ms Huang’s period and checking why she saw the nurse were first, from August to September 2002, Rheem were attempting to impose on all employees a limit of a ‘reasonable’ time for absences, including toilet breaks, from the line during siren to siren. Secondly, Ms Lejtman had spoken with Ms Huang on 8 November about not taking lengthy absences from the line. Thirdly, when Ms Huang met Ms Lejtman in between buildings in the course of a lengthy break, she did not give a reason for her absence being lengthy. Fourthly, Ms Lejtman was attempting to establish Ms Huang’s reason for her long absence, in the light of Ms Huang saying she had stomach pain, and the nurse’s log indicating she had seen the nurse for period pain. Fifthly, the Tribunal finds Ms Lejtman’s description of a period was an appropriate answer to Ms Huang’s question of ‘what is a period’, and her seeking the reason why Ms Huang had seen the nurse also appropriate in the circumstances of counselling about not the first overly long absence and her having been found in between buildings in her absence on 12 November 2002.

92 After considering all the circumstances, the Tribunal finds that Ms Lejtman mentioning Ms Huang’s period and seeking medical confirmation of same in the context of establishing the reason for her long absence on 12 November 2002, was not less favourable treatment than would have been afforded a male in the same or similar circumstances. Further the Tribunal is satisfied that Ms Lejtman did not so act in any part on the ground of Ms Huang’s sex.

93 The Tribunal finds that Ms Lejtman’s action on 12 November 2002 was not unlawful discrimination in breach of Section 24 and/or 25 of the Anti-Discrimination Act1977 on the ground of sex.

94 Ms Huang claimed that her being monitored, required to seek special authorisation, and her need to go to the toilet being broadcast throughout the factory, amounted to unlawful discrimination. After considering all the evidence, the Tribunal finds that Ms Huang has established that she was monitored more extensively than were other workers at Rheem, that she had to obtain authorisation from her supervisor or superintendent whereas all other workers in the factory were only required to notify their leading hand, and that for one to two weeks this involved her intention to go to the toilet being broadcast throughout the factory.

95 The Tribunal is satisfied that the monitoring, authorisation procedure and broadcasting her need to go to the toilet were differential treatment by Rheem of Ms Huang. The Tribunal finds this could fall within Section 24 and 25 of the Anti-Discrimination Act 1977.

96 After considering all the evidence, including that of Ms Lejtman, Mr Ross, Mr Reardon and Mr Meyer, the Tribunal is satisfied that the circumstances in which Rheem monitored Ms Huang and required her to seek special authorisation which involved the broadcasting for a short period were that Ms Huang took unauthorised breaks and sometimes overly long breaks without offering any satisfactory explanation, and generally denied that she had not had authorisation and/or had been longer than was reasonable.

97 After considering all the evidence, the Tribunal is satisfied the records of counselling as to Ms Huang’s absences are genuine. The Tribunal is also satisfied that at each counselling and warning meeting, Ms Huang was given a chance to comment on the length of the alleged absences and chose not to do so, apart from on 12 November 2002. The Tribunal notes that Mr Reardon, Ms Lejtman and Mr Ross said that such intensive monitoring and the need for special authorisation had not been imposed on others because after being counselled once or twice, other workers complied with the new siren to siren policy which imposed a condition that absences from the line be notified to the leading hand and be kept to a reasonable time.

98 The Tribunal notes that the broadcasting of Ms Huang’s need to go to the toilet throughout the factory was appalling. However, the Tribunal accepts that Rheem did not intend this to happen, and when management was apprised of this result of their requirement for Ms Huang to seek authorisation before she went to the toilet, management stopped authorising her departures through the walkie talkie within a week or so, and instead, the method of Ms Huang obtaining authorisation was changed to the supervisor being requested to come to the line where the supervisor would then discretely be told the reason for the call and give the authorisation. From this time, the need to obtain authorisation from the supervisor was not more onerous, apart from a short wait, than the need imposed on all workers at Rheem to tell their leading hand before leaving the line. \

99 After considering all the evidence, the Tribunal is satisfied that the monitoring and requirement that she obtain authorisation from her supervisor or superintendent before leaving the line, even though for a short while it involved the broadcasting of her need to go to the toilet, was not unreasonable.

100 The Tribunal accepts that it is possible that part of the reason Ms Huang was subject to the monitoring and special authorisation procedure was because there was personal conflict between Ms Huang and Ms Lejtman, and Mr Ross and Mr Meyer supported Ms Lejtman in the conflict. However, the Tribunal is also satisfied that the ground of Ms Lejtman’s dislike of Ms Huang, and the support for Ms Lejtman by Mr Ross or Mr Meyer, was not because of Ms Huang’s sex, race or any other reason under the Anti-Discrimination Act, but rather, it was because of Ms Huang’s responses and actions as a worker. Further, whenever presented with information about her absences or other performance issues, Ms Huang did not attempt to explain or make any concessions; rather, she denied all.

101 The Tribunal has some sympathy for Ms Huang, since English is not her first language and also, the Tribunal accepts that she genuinely perceived some of the allegations as to length of her absences (and also as to her initial productivity on the burner cell table) as incorrect, and genuinely saw the monitoring and extra authorisation condition imposed on her as unreasonable. However, the Tribunal finds that at times, before and after being subjected to the counselling, monitoring and extra conditions of authorisation, Ms Huang did not tell her leading hands before she left the line, and she did not keep her breaks reasonable in duration.

102 After considering all the circumstances, the Tribunal is satisfied that the monitoring and condition that Ms Huang seek special authorisation which involved the broadcasting for a short period was not imposed on her at all, or in part, because she is a female. The Tribunal is satisfied that Ms Huang could comply with the monitoring and special authorisation procedure before she left her work station and that it was not a condition with which a substantially higher proportion of males could have complied with. The Tribunal is satisfied that the monitoring and the authorisation requirement, even though it involved a short period of broadcasting before the procedure was changed to eliminate this, was not unreasonable having regard to all the circumstances. The Tribunal finds that in all the circumstances, the monitoring, the authorisation procedure required, and the short period of broadcasting her need to go to the toilet, did not amount to unlawful discrimination within Section 24 and 25 of the Anti-Discrimination Act 1977.

103 Ms Huang claimed that she was counselled on a number of occasions without reason since the records of her absences from the line were fabricated. The Tribunal has considered the evidence of Ms Lejtman, Mr Reardon, Mr Ross and Mr Meyer that the reason records were kept of times and whether absences were authorized was because in the face of everything being denied, the company felt it had to collect ‘data’, which indicates the company was motivated to keep accurate records, knowing the figures would be challenged by Ms Huang and the union. The Tribunal also notes the evidence of Mr Reardon, Mr Ross and Mr Meyer that they regarded the figures as to Ms Huang’s absences to be reliable. The Tribunal also notes Ms Huang’s evidence that she did not explain to Ms Lejtman why she had been on a lengthy break on 12 November 2002 because she was angry, and the evidence of all those present at subsequent counsellings, including Ms Huang, that in general, she did not discuss or explain or accept any validity in her being monitored as to her absences from the line. On the issue of Ms Huang’s absences from her work line, the Tribunal finds the evidence of Ms Lejtman and Mr Reardon more credible to that of Ms Huang. The Tribunal is satisfied that on some occasions Ms Huang took overly long breaks before 12 November 2002, and also that she did not follow the stipulated authorization requirements before she left the work line. The Tribunal is also satisfied that Rheem took reasonable and genuine efforts to monitor and time her absences (for example on 14, 18 and 19 April 2003) so it would have ‘data’ as to the allegations they were making as to her the length of her absences and whether or not the absences were authorized.

104 The Tribunal notes that it cannot be satisfied that on every occasion the figures used at counsellings were absolutely accurate, because there were some occasions on which the time was estimated (for instance Ms Lejtman’s estimate of the absence on 23 January 2003), and Mr Goshan, whose figures were relied upon in the meeting on 16 May 2003 which culminated in Ms Huang being dismissed, was not available to give evidence as to how he collected the data as to absences which he passed on to Mr Reardon in emails.

105 Nevertheless, after considering all the evidence, the Tribunal is satisfied that the information presented to Ms Huang in counsellings was not fabricated, but rather, was genuine, and, in general, substantially (and perhaps fully) reliable. Further, the Tribunal is satisfied that Ms Huang has not established that she was counselled without reason.

106 Ms Huang claimed that on 24 April 2003 she was asked to leave the factory without reason. After considering the evidence of Ms Huang, Ms Lejtman and Mr Riitano on this matter, including Ms Huang’s evidence that she knew clearly after 16 April 2003 that before she left her work line she needed permission of her supervisor, the Tribunal finds that Ms Huang knew that the reason she was asked to leave the factory on 24 August 2003 was that her absence from the work line had not been authorised according to the agreed procedure. The Tribunal also is satisfied that on 24 April 2003, Ms Huang left the line on that day without getting the required authorisation. The Tribunal finds also that Ms Lejtman required her to leave the factory because a union delegate was not present for a counselling. The Tribunal is satisfied that the request to leave the factory did not amount to her being dismissed, but rather, it accepts as credible the evidence from Mr Ross that at that stage, if Ms Huang had observed the procedures and time limits for absences from the line, she would have kept her job.

107 After considering the evidence of Ms Huang, Ms Lejtman and Mr Riitano on this matter, the Tribunal finds that Ms Huang has not established that the incident on 24 April 2003 when she was asked to leave Rheem premises and a security guard was called was imposed on her in part, or at all, because she is female and/or that a male in the same circumstances, or in circumstances which are not materially different, would not have been subjected to being asked to leave and/or a security guard being called. Further, the Tribunal finds that the requirement for Ms Huang to leave the factory on 24 April 2003 was not unreasonable in all the circumstances given Ms Huang knew that day that she had breached the requirement to get the agreed authorisation of her supervisor or superintendent before she left her work station, and that day, being in the Easter holiday period, a union delegate was not present for a counselling. After considering the evidence of Ms Lejtman and Mr Riitano as to the calling of the security guard being standard procedure when an employee is asked to leave the premises, the Tribunal is satisfied also that Ms Lejtman’s calling of the security guard was not unreasonable in all the circumstances. It follows that the incidents on 24 April 2003 do not amount to unlawful discrimination within Section 24 and 25 of the Anti-Discrimination Act 1977 on the ground of sex.

108 Ms Huang claimed that Ms Lejtman encouraged colleagues of Ms Huang to harass her. The Tribunal accepts that Mr Dempsey, and perhaps other male workers at Rheem, sometimes swore at Ms Huang and once Mr Dempsey handed her a screwdriver the wrong way. However, after considering all the evidence including that the basis of Ms Huang’s claim was that she saw Ms Lejtman smoking with Ms Huang’s colleagues, the Tribunal finds that Ms Huang has not established that Ms Lejtman encouraged explicitly or implicitly Mr Dempsey or other of Ms Huang’s colleagues to harass her.

109 Ms Huang claimed that her productivity on the burner table was unfairly compared against that of a male, and she was threatened with dismissal if she did not match his productivity.

110 The Tribunal has considered the evidence of Ms Huang, Mr Reardon, and Ms Lejtman, and is satisfied that Ms Huang was asked to lift her productivity to a level which was in the same ‘ballpark’ as Mr Dempsey’s. The Tribunal has considered the evidence of Mr Reardon and Ms Lejtman that if she had expressed she had a problem meeting productivity expectations, Rheem would have tried to resolve this, and Rheem would have moved her as it had moved others, and Ms Huang’s evidence that she knew that if she had complained of injury she would have been moved. After considering all the evidence, the Tribunal is not satisfied that she was threatened with dismissal if she, with reason, did not match Mr Dempsey’s productivity.

111 The Tribunal is satisfied that Ms Huang regarded the comparison of her output with that of Mr Dempsey as a ‘competition’, and that she considered him stronger than herself and so was stressed by the comparison, and that in attempting to match his output, she hurt her arm and back, felt ill and couldn’t sleep. However, the Tribunal is also satisfied that Ms Huang did not tell Rheem of these problems, other than to request a sleep study be paid for, at which point she was told she could access counselling but if she wanted further, she would have to fill out the appropriate paperwork, which the Tribunal accepts was not done.

112 After considering the evidence, the Tribunal finds that Ms Huang established that Rheem compared her output on the burner table with that of a male, Mr Dempsey, who was younger and stronger than Ms Huang. The Tribunal considers that comparison of the output of a female worker against that of a younger, male worker could amount to unlawful discrimination on the ground of sex in certain circumstances. The comparator would be asking a male to match productivity of a female in a job more suited to a female’s skills.

113 On the one hand, the Tribunal notes that Ms Huang said that in trying to match Mr Dempsey’s productivity, she suffered a sore arm, stress, sleeplessness and a sore back, and this would indicate that she was not able to match Mr Dempsey’s productivity without suffering detriment.

114 However, the Tribunal also notes the evidence of Mr Borg and Mr Meyer that the position in which Ms Huang was working at the time of the comparison was considered a light duty position, of Mr Reardon and Mr Borg that women currently work in that position, of Ms Winton that the job was not gender specific, and of Ms Huang that she had previous experience in a burner cell job and she could match Mr Dempsey’s output when he was working normally. The Tribunal also notes that while Mr Reardon said Ms Huang was the only one in his 5 years of employment at Rheem who he could recall having their productivity monitored in the way that Ms Huang’s productivity was monitored, he also said, as did Ms Lejtman, that if Ms Huang had not got the job on the burner cell table, she would have been ‘placed somewhere else’, and if Ms Huang had experienced some problem and been unable to do that job on the burner cell table, Rheem would have looked at what the problem was, and addressed it. He and Ms Lejtman said that Ms Huang had not complained of any problems doing the burner cell job.

115 After considering all the evidence, the Tribunal is satisfied that the job on the burner cell table which Ms Huang was doing was not gender specific. After considering the evidence as to the job itself given in the hearing, the Tribunal is also satisfied that strength or age was not a factor of Ms Huang’s job on the burner table. The Tribunal is also satisfied that if Ms Huang had reported her claimed injuries, rather than simply denying that there was any difference between her output and that of Mr Dempsey, she would have been moved by Rheem, as were other workers. The Tribunal has also found above that Ms Huang was not threatened with losing her job if she did not raise her output to that of Mr Dempsey’s.

116 After considering all the evidence, the Tribunal is satisfied that the comparison with Mr Dempsey was imposed on Ms Huang because he was the worker doing the same job and the job was seen, and is, not gender specific. The Tribunal is satisfied that the comparison of Ms Huang’s productivity with Mr Dempsey’s was not differential treatment on the ground of sex since the requirement was that she match a fellow worker by using reasonable effort in a job where gender was not an issue, though other factors such as injury would have been an issue. The Tribunal is satisfied that the requirement that she match Mr Dempsey’s productivity was reasonable having regard to all the circumstances. The Tribunal finds that the requirement that Ms Huang match Mr Dempsey’s output was not unlawful discrimination on the ground of sex within Section 24 and 25 of the Anti-Discrimination Act 1977.

117 Ms Huang claimed that the figures on which the comparison was made between her productivity and that of Mr Dempsey were fabricated. The Tribunal notes the evidence in the hearing of Mr Kouyoumdjian that the figures he presented to management were factual and accurate, and the evidence of Ms Lejtman, Mr Reardon and Mr Meyer that they accepted the figures presented to them as accurate and factual. However, first, the figures given in several of Mr Kouyoumdjian’s emails simply do not tally. Secondly, the process of calculating the comparative output of Mr Dempsey and Ms Huang was flawed, given it relied mainly on Mr Dempsey, who could not be seen as a disinterested party, to mark his output and then to collect unnumbered stickers from the burners he completed, and these figures were only checked about 50% of the time by Mr Kouyoumdjian and only once by Mr Reardon. Therefore, after considering the evidence, the Tribunal is not satisfied that all the figures provided by Mr Kouyoumdjian for comparative output of Mr Dempsey and Ms Huang were entirely reliable.

118 Nevertheless, the Tribunal notes that the productivity figures collected did not result in Ms Huang being counselled and when, after some two weeks, the figures indicated the productivity levels of Ms Huang and Mr Dempsey were not inordinately different, there were no further developments which indicates that the issue was not a ploy by management to dismiss Ms Huang. The Tribunal also notes that the reason why data initially commenced to be collected was not to check on Ms Huang, but rather to investigate and solve a quality problem. The Tribunal is also satisfied that the reason Mr Dempsey initially was asked to collect the data, rather than both him and Ms Huang being asked, was that Rheem simply wanted to collect figures to ascertain and fix the quality problem as efficiently as possible. The Tribunal is satisfied that this system of data collection continued when it appeared that a productivity problem existed on the line caused by Ms Huang because the reactions of Ms Huang were always confrontational and Rheem considered it needed data to support any claims made by management such as to Ms Huang’s perceived lower than expected productivity. After considering all the evidence, the Tribunal is satisfied that the productivity figures presented by Mr Kouyoumdjian and Mr Reardon as to Ms Huang’s productivity were not deliberately fabricated or substantially inaccurate.

119 The Tribunal finds that while Ms Huang has not established that the figures presented to her were fabricated, she has established that the figures were in some instances inaccurate, that she was not allowed to have an independent counting, and that management were not genuinely objective or even handed in their absolute acceptance of figures which did not tally. The Tribunal is satisfied that this could amount to differential treatment within Section 24 and 25 of the Anti-Discrimination Act 1977. The Tribunal has considered as a comparator a male who was seen by Rheem as less productive than other workers, and did not give any explanation.

120 As with its findings as to Ms Huang being required to seek authorisation to leave her work line, the Tribunal accepts that it is possible that part of the reason Rheem management (Ms Lejtman, Mr Ross and Mr Meyer) did not check the accuracy of the figures presented to them of output for Ms Huang and Mr Dempsey was because of personal conflict between Ms Huang and Ms Lejtman, and Mr Ross and Mr Meyer supporting Ms Lejtman in the conflict. However, the Tribunal has found above that it is satisfied that the ground of Ms Lejtman’s dislike of Ms Huang, and the support for Ms Lejtman by Mr Ross or Mr Meyer, was not because of Ms Huang’s sex, race or any other reason under the Anti-Discrimination Act 1977, but rather, was because of Ms Huang’s responses and actions as a worker.

121 After considering all the evidence, the Tribunal finds that in all the circumstances, Rheem would have treated a male in the same or substantially similar situation to Ms Huang the same as it treated Ms Huang. That is, the Tribunal is satisfied that in this similar situation, Rheem similarly would not have divulged how the data was collected or who collected the data because Rheem didn’t have to and not allowed an independent check by the union because it was not satisfied by the worker’s explanation and it trusted that when Mr Reardon presented figures to management, these figures were accurate. After considering all the evidence, the Tribunal finds that while the conditions under which the figures pertaining to Ms Huang’s productivity were collected and checked may have been somewhat unfair, this was not because she was a female and this did not amount to unlawful discrimination on the ground of sex within Section 24 and 25 of the Anti-Discrimination Act 1977.

122 Ms Huang claimed that her complaint was not investigated appropriately as an EEO complaint. The Tribunal notes that Ms Huang’s complaint contained extremely emotive language and robust invective against Ms Lejtman, including making allegations that Ms Lejtman was a communist who was torturing Ms Huang. Nevertheless, the Tribunal considers that when a complaint is made to an EEO officer by any employee it is reasonable for the employee to assume that this complaint will be investigated according to the employer’s EEO guidelines. Cognisant that Rheem is a multi cultural workplace, the Tribunal considers that the Rheem EEO policies should reflect this, and be implemented accordingly, including providing that if a complaint is made by a person of non-English speaking background (or otherwise English literacy challenged) the complaint will be discussed through an interpreter to ascertain its basis.

123 In this case, contrary to its policy for handling EEO complaints, Rheem did not speak with Ms Huang and explore whether there was any EEO substance beyond the robust invective against Ms Lejtman. Rather, they chose to treat the complaint as an ‘industrial relations’ matter. The Tribunal notes that Rheem’s written policy appears good, but implementation of the policy by Rheem appeared to the Tribunal to be inadequate. The Tribunal notes that Rheem is a multicultural workplace, and where a complaint is made to the EEO officer appointed by Rheem, the complaint should be genuinely explored to ascertain the foundation of the complaint even if it doesn’t explicitly refer to discrimination on race and other grounds. Further, the EEO officer and manager should be appropriately trained and skilled, and in this case, it was not apparent what EEO training and skills, if any, were possessed by the appointed EEO officer, Ms Patterson and/or Mr Ross.

124 The Tribunal finds that Ms Huang has established that her complaint about discrimination by Ms Lejtman was not genuinely investigated by Rheem as an EEO complaint. The Tribunal considers that not genuinely investigating a complaint made to an EEO officer as an EEO complaint could amount to unlawful discrimination on the ground of sex in certain circumstances. The comparator would be not investigating an EEO complaint made by a man.

125 Having considered all the evidence, though the Tribunal finds the handling by Rheem of Ms Huang’s complaint to have been lacking, the Tribunal is satisfied that this differential treatment of Ms Huang was not genuinely investigated by Rheem as an EEO complaint, was not caused by Ms Huang’s sex, race or any other reason under the Anti-Discrimination Act, but rather, was caused by Ms Huang’s responses and actions as a worker.

Ms Huang’s claims on the ground of victimisation

126 Ms Huang alleged the following acts amounted to victimisation:

Rheem counselled her on a number of occasions unnecessarily; and

Rheem dismissed her because she complained to the Board.

127 The Anti-Discrimination Act 1977 Section 50 (1) provides that it is unlawful for a person to subject another person to any detriment in any circumstances on the ground that the person victimised has brought proceedings against the discriminator or any other person under this Act, or alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or otherwise has done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. Section 50 (2) states that subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

128 In Elder v Department of Education and Training [2004] NSWADT 153, the Tribunal stated at [33]:

‘As to whether or not victimisation has occurred, the subjective views of the applicant in the absence of any facts to sustain that view will not support a claim.’

129 The Tribunal has found that the allegations made by Ms Huang to the Board were mainly not founded. Nevertheless, despite this and the way in which her allegations to Rheem and to the Board were worded (mainly as invective against Ms Lejtman), the Tribunal is satisfied that she made these allegations in good faith. Accordingly, the Tribunal has considered whether Ms Huang was counselled or dismissed because she made allegations of unlawful discrimination to Rheem and to the Board. Ms Huang is required to prove her allegations of victimisation on the balance of probabilities: Elder v Department of Education and Training [2004] NSWADT 153, at para 33. Anti-Discrimination Act 1977 Section 4A does not apply to an act of victimisation: Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at page 78,986.

130 After considering all the evidence, including the records of Rheem’s counsellings of Ms Huang, the Tribunal is satisfied that Ms Huang was counselled because she did not, as required, at all times keep her absences from the line to a reasonable time and did not comply with the initial requirement to notify her leading hand as to absences and subsequently, to wait for authorisation from her supervisor or superintendent before leaving her work station. After considering the evidence, the Tribunal finds that Ms Huang has not established that she was counselled as a result of her complaint to the Board.

131 As to Ms Huang’s claim that she was dismissed because she complained to Rheem and/or to the Board, the Tribunal notes that Ms Huang said she first attempted to complain to Rheem about unlawful discrimination through Ton on 17 February 2003. Ms Lejtman, Mr Ross, and Mr Meyer said they were not aware of this complaint and the Tribunal accepts this evidence as credible. Ms Huang said she next complained to Ms Patterson on 7 March 2003. Ms Lejtman, Mr Ross and Mr Meyer all said they became aware of this complaint shortly after when Ms Patterson discussed the complaint with them. Certainly all were aware of the complaint by 4 April 2003 when the meeting chaired by Mr Addo was held regarding the complaint made by Ms Huang to Ms Patterson. Ms Huang first complained to the Board 29 April 2003 and though Mr Meyer said he wasn’t ‘aware of the timings’ of when he first became aware of the complaint to the Board, Mr Ross said he first became aware that Ms Huang had made a complaint when Ms Pam Richards of the Board telephoned him and told him that Ms Huang had made some complaints, and that Ms Richards would be gathering information, and he was first aware of any detail when he received the first written documentation from the Board on 19 May 2003, after Ms Huang had been dismissed.

132 The Tribunal notes Ms Lejtman, Mr Ross and Mr Meyer each said that the basis for dismissing Ms Huang was her non compliance with the requirements to keep absences from the line to a reasonable time and to seek authorisation before leaving her work station. The Tribunal has found above that Ms Huang took overly long and unauthorised breaks. The Tribunal also notes the evidence of Mr Zhang that Ms Huang could be ‘stubborn’, and of Ms Lejtman, Mr Ross, Mr Reardon and Mr Meyer that Ms Huang did not explain her absences or engage in any constructive dialogue, through union delegate interpreters, about Rheem’s criticisms of her.

133 Having considered all the evidence, the Tribunal is satisfied that Ms Huang was not dismissed because she complained internally and to the Board, but rather, because she took unauthorized and overly long absences from the line, and did not explain these absences, despite the counsellings and warnings she received.

134 After considering all the evidence, the Tribunal is not satisfied on the balance of probabilities that Ms Huang was dismissed from Rheem because of her allegations of unlawful discrimination, or because Rheem suspected that she intended to make such allegations.

135 As to costs, the Tribunal notes that the Anti-Discrimination Act 1977 Section 114(1) provides that except insofar as is provided in Section 114(2), each party to an inquiry shall pay his or her own costs. Section 114(2) provides that where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. In this case, the Tribunal can see no justification for ordering Ms Huang to pay the costs of Rheem (or vice versa).

ORDERS

136 The Tribunal makes the following Order:

1. That the Applicant’s claims be dismissed