Hudson v Strathfield Golf Club
[2000] NSWADT 88
•07/06/2000
CITATION: Hudson -v- Strathfield Golf Club [2000] NSWADT 88 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Steven Hudson
Strathfield Golf ClubFILE NUMBER: 122 of 1997 HEARING DATES: 09/12/99, 08/03/2000, 09/03/2000 SUBMISSIONS CLOSED: 04/17/2000 DATE OF DECISION:
07/06/2000BEFORE: Britton A - Judicial Member; Edwards K - Member; McDonald O - Member APPLICATION: Race Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR
Jones v Dunkel (1959) 101 CLR 298
Payne v Parker [1976]1NSWLR 191
Langley v University of NSW (1984) EOC92-018
Director General of Education v Brine IIR
Commonwealth v Humphries [1998] 1031 FCA
HREOC v Mount Isa Mines LTD(1993) 118 ALR
Prakash -v- Bob Brog Enterprises Pty Limited [1999], NSWADT 73
Ardeshirian v Robe River Iron Associates (1990) EOC 92- 299
Metwally v University of Wollongong (1984) EOC
Rugema v Gadsten Pty Ltd and Derkes [ 1997] HREOCA 34
Hume v Mulheron [1996] NSWEOT
Gomez v Burgmann Seals Australia Pty Limited [1997] NSWEOT
Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147
Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319
Hall v Sheiban (1985) ALR 543REPRESENTATION: APPLICANT
A Tibbey, solicitor
RESPONDENT
E Brus, barristerORDERS: 1. The respondent pay to the complainant within 21 days the sum of $3000 for non-economic loss.; 2. The parties provide to the Tribunal further submissions, as directed by the registrar, on the calculation of damages for economic loss.
1 The complainant, Steve Hudson was born in Greece and migrated to Australia in 1971. He was employed by the respondent club, Strathfield Golf Club (SGC) from 30 October 1995 until his dismissal on 7 December 1995. He claims that throughout his employment he was subjected to repeated racial abuse and harassment by co-worker, Steve Willis. He alleges that as a result his terms and conditions of employment were adversely effected in contravention of s8(2)(a) of the Anti-Discrimination Act (NSW) 1997(the Act). Further it is asserted that the decision to dismiss Mr Hudson amounted to unlawful discrimination pursuant to s8(2)(c) of the Act.
2 The complainant filed an application seeking relief for unfair dismissal under s 246 of the Industrial Relations Act (NSW) 1991 on 29 December 1995. The matter came before the Industrial Commission of NSW on 29 January for a preliminary hearing. In April 1996 the complainant requested permission to withdraw this application. This request was granted by the Commission on 17 April 1996.
3 Mr Hudson lodged a complaint with the Anti-Discrimination Board (ADB) on 27 December 1995. Conciliation was attempted but unsuccessful. On 4 September 1997 the complainant wrote to the Board requesting that the matter be referred to the (then) Equal Opportunity Tribunal.
Issues
4 The issues for the Tribunal to determine in this matter are :
- · Did Steve Willis, harass and racially abuse Mr Hudson?
· If so, does such treatment amount to ‘less favourable treatment’ ?
· If yes, was this treatment ‘on the grounds’ of Mr Hudson's race?
· As a result of this alleged harassment were the terms and conditions of Mr Hudson’s employment adversely effected?
· Is the SGC vicariously liable for Mr Willis’ treatment of Mr Hudson?
· Was the decision to dismiss Mr Hudson unlawful pursuant to s8(2)(c) of the Act?
Relevant provisions of the Anti-Discrimination Act
5 Sub-section 8(2) provides that it is unlawful for an employer to discriminate against an employee on the grounds of race:
- (a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
6 Section 4(1) of the Act defines ‘race’ to mean: ‘colour, nationality and ethnic or national origin.’
7 The test of discrimination set out in s7 of the Act, provides:
- (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
- (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
8 Section 4A addresses the situation where an act is done for two or more reasons and provides where:
- (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
9 Section 53 provides:
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.
UNDISPUTED FACTS
10 The complainant is of Greek racial origin. He became an Australian citizen in 1977. Whilst in Greece he graduated from the Thessalonika Agricultural Institute and worked as an assistant fitter on an oil refinery. He held various jobs after arriving in Australia.
11 In 1995 the complainant was employed on a 26 week contract, by the SGC under the Job Skills Program, administered by Mission Employment, (“ME”) an arm of Sydney City Mission. A Federal Government initiative, the Jobs Skill program was designed to encourage employers to provide opportunities to the unemployed by subsidising the labour costs of participants employed under the program.
12 The complainant commenced work at the SGC on 30 October 1995. Prior to this appointment he had been unemployed. In the second and third week of his employment he attended an authorised external training course returning to the SGC on 20 November. On 7 December Mr Hudson was given one week’s written notice of termination. He did not return to the SGC after that date. In all, he worked at the SGC for 19 days.
13 A standard Job Skills Agreement was entered into between Mr Hudson, the SGC, ME and the relevant union, the LHMU. The Agreement set out the respective rights and obligations of the parties. Its terms included: ‘the employer may terminate the placement of the participant upon reasonable notice after consultation with the broker and adherence to Award conditions. Placements may be terminated by the broker due to the unsatisfactory or unsuitable nature of a placement...’: clause 12. Further, the agreement provided that the employer must provide on-the-job training (approximately 15% of the placement): clause18(1).
14 Phillip Adams was at all relevant times, the co-ordinator of the Job Skills Program for ME. Mr Adams brokered Mr Hudson’s placement with SGC.
15 Mr Hudson was employed as a green keeper, level 1. His job description was:
- · keeping areas clean and tidy
· weeding and watering
· trimming, mowing of surrounds, etc with hand implements
· assistance in preparing areas for golf
· assistance in course or green maintenance and construction
· operation of a limited range of vehicles, including motor vehicles.
16 Since 1991, Greg Ford, a qualified green keeper, has been employed as the course superintendent at the SGC. He is responsible for overall course maintenance and staff supervision. At all relevant times approximately eleven ground staff, a mechanic and a horticulturalist were under Mr Ford’s charge.
17 Each morning Mr Ford allocated tasks to his staff. What tasks were undertaken on any particular day was dictated by the state of the course, seasonal factors and weather. In allocating duties Mr Ford took into account the nature of the tasks and the skill and experience of individual employees. Staff worked alone, in pairs or in small teams, depending on the size of the job allocated.
18 It was Mr Ford’s practice to delegate the task of instructing new and /or untrained employees in the use of machinery and/or particular tasks to qualified members of staff.
19 Mr Ford’s second in charge, Ivan Welham, was a qualified green keeper. Mr McGlynn, also a qualified green keeper was at all relevant times, third in charge.
20 Mr Willis, a qualified green keeper, commenced employment with the respondent club in 1991 resigning from his position in mid-1996.
21 Prior to Mr Hudson’s dismissal no written advice on the SGC’s anti-discrimination policies was provided to staff. Nor was any formal or informal, anti-discrimination training provided.
- EVIDENCE
Complainant’s allegations against Mr Willis
22 The complainant alleges that throughout his employment with SGC he was subject to persistent abuse and harassment by co-worker Willis.
23 The complainant gave evidence that from the start of his employment Steve Willis made derogatory comments about the ME program and his overseas qualifications.
24 Mr Hudson gave evidence that Mr Willis intimidated him on a daily basis calling him names such as ‘fucking wog’. He would ‘go on all day’. He said that on many occasions Mr Willis raised his voice and pointed his finger in his face.
25 In cross-examination Mr Hudson conceded that the racial taunts did not start on day one but from the outset, Mr Willis’ attitude had been racist. When asked to describe this ‘racist’ behaviour (on day one), Mr Hudson referred to repeated questioning ‘about where I came from, my family’.
26 The complainant estimated that Mr Willis called him a ‘fucking wog’ more than 60 times. ‘He was never pleased with my performance.... He called me stupid.’ Mr Hudson claimed the only day he was not bullied by Willis was the day after he complained to Mr Adams.
27 The complainant said the harassment continued even when he was not paired to work with Mr Willis. Willis would follow him around on tractor or foot, calling him racist names, criticising his work .
28 Mr Ford’s diary indicates that Messrs Willis and Hudson had been paired to work together on approximately five occasions.
29 Mr Hudson gave evidence of three specific incidents of harassment:
Trouser Incident
30 Mr Hudson gave evidence that on 1 December he was preparing bunkers. It was raining. While working alone he was approached by Mr Willis who said in a loud and aggressive voice, : ‘Get them off right now or I’ll shoot you.’ While removing the trousers, Mr Willis pushed him to the ground and started to pull them off, shouting , ‘Come on fucking wog, have a go if you dare, then I’ll smash your face’.
31 Ivan Welham was standing in for Greg Ford on this day. He gave evidence that he was approximately 20 metres away when he witnessed Mr Willis dragging off the complainant’s trousers. He immediately went over to the two, and asked Mr Willis what was going on, to which Mr Willis replied ‘I want my pants back.’ Mr Welham told Hudson to remove the trousers and took him to the shed to find a replacement.
32 Mr Welham said he did not hear Mr Willis threaten or abuse the complainant; indeed he did not see the lips of either man move during the incident. He said Mr Willis’ back was facing him as he approached the two men.
33 Mr Hudson’s evidence was that, despite requests to Mr Ford, he had not been allocated wet weather gear. As it was raining he took a pair of unnamed waterproof trousers from a common area outside the locker room, which he understood was available to any member of staff . Mr Welham’s evidence was that it was standard practice for any member of staff who needed wet weather clothing to use the old gear stored outside the locker room.
34 Mr Welham gave evidence that after the incident he took Mr Hudson back to the shed and encouraged him to be calm. He said he later spoke to Mr Willis who claimed the trousers were his. Mr Welham took the incident no further: ‘if that’s the way he [Willis] feels, I don’t worry about it’.
35 Mr Welham said he forgot to tell Mr Ford about the incident. In his opinion: ‘I thought I handled it all right, .. was calmed down, not fighting, we really didn’t need talking to the boss’.
36 Mr Ford gave evidence that he spoke to Mr Willis after the trouser incident. Mr Willis told him he approached Mr Hudson in the shed and advised him that the trousers were his; Hudson left the shed saying ‘as far as I was concerned they’re for anyone to use’. Mr Willis said he approached Hudson again asking for the trousers to be returned. Mr Hudson took the trousers off slowly. Mr Willis said he assisted him in pulling them off.
37 In his affidavit Mr Hudson stated that this incident occurred on 1 December. In cross-examination he said he must have been mistaken and the incident occurred on 5 December.
Shaving Incident
38 Mr Hudson gave evidence that after the trouser incident he was raking bunkers when Mr Willis approached him driving a large mower. Mr Willis turned the vehicle sharply so that the machine shaved the complainant, touching his raincoat. He believed the incident to be serious and potentially dangerous and reported it to Mr Welham.
39 Mr Welham denies that Mr Hudson reported this incident to him.
Back Incident
40 Mr Hudson gave evidence that while a passenger, in what he described as a ‘van’, Mr Willis often drove recklessly, like a ‘kamikaze’. On occasion Mr Willis would drive the van into the footpath jarring Mr Hudson’s back. According to Mr Hudson, on one of these occasions he said to Willis, ‘Who will compensate my family if I get killed?’ to which Mr Willis, replied ‘The Club would pay ten dollars because you are a fucking wog and you are not permanent.’
41 Mr Hudson gave evidence that on one occasion Mr Willis was driving very fast and the ‘van’ hit a log, causing his feet to hit the dashboard. In cross-examination he said his knees hit the dashboard. In re-examination he explained that he had been confused about the precise meaning of the words ‘feet’ and ‘knees’.
42 Dr Costa gave medical evidence on behalf of Mr Hudson, and like Mr Hudson, spoke Greek. He explained that in the Greek language unlike English, there was no word to describe the different parts of the leg; the word ‘bothi’ was used to describe the lower limb, the lower leg or foot.
43 According to Mr Hudson the log, into which the van was driven, separated an asphalt footpath from the green. The log was about the size of a telegraph pole.
44 Mr Ford gave evidence that in about 1996/1997 a single Kopper log had been installed at the edge of the green on the seventh tee to discourage golfers from taking a short cut across the green. The Kopper logs were trialed for a short period and eventually removed for aesthetic reasons. Mr Ford gave evidence that at no stage during his employment with the SGC, was any wooden material, other than a Kopper log, used in the area near the seventh tee. Messrs Welham, McGlynn and Caruana also gave evidence that they had not seen a telegraph pole in the area described by Mr Hudson. Mr McGlynn recalled that a split Kopper log had been used for a short period but could not remember when.
45 In a view conducted by the Tribunal of the respondent club’s golf course, Mr Hudson identified the place where the accident occurred, namely the pathway on the western side of the railway, near the pumphouse adjacent to the seventh tee.
46 In cross-examination when shown a photo of an 810 Express Utility cart Mr Hudson replied this was not the ‘van’ driven in the accident. He rejected the description of the van put to him in cross-examination, of a ‘golf cart with modifications’, describing it as a ‘powerful van. I think its got a VW engine’. He said the van was a lot faster than the speed of the golf buggies, driven on the day of the view, and was not governed (controlled for speed).
47 Mr Ford gave evidence that during Mr Hudson’s employment with the club, the SGC owned and operated two 810 Express Utility trucks. Both vehicles are still kept by the Club, one is used for parts. A more recent model of the Express Utility has been purchased by the Club and is now garaged at the Club. This evidence was supported by the service records of the vehicles held by the SGC’s mechanic. On the day of the view, the complainant could not identify the vehicle he said was driven during the incident.
48 Messrs Welham, Ford and McGlynn gave evidence that all the vehicles used on the course were speed-governed. Messrs Welham and Ford gave evidence that at no time during their employment with the SGC, had a vehicle with a Volkswagen-type engine been in use on the course.
49 The complainant said he told Mr Ford about the accident in the presence of other staff, about an hour after it occurred. Later in cross-examination he said on the next day he reported the accident again to Mr Ford because Mr Ford had taken no action after the first report. Mr Ford and Mr Welham denied that Mr Hudson told them about an accident with a vehicle involving Mr Willis.
50 In his affidavit, Mr Hudson claimed the accident occurred on 12 December. In cross-examination he said he could not say for sure when the accident occurred though he thought it was a few days before his dismissal.
51 Mr Hudson said immediately following the accident he experienced pain, mainly in his back. He also had some pain in his knees. In cross-examination Mr Hudson had some difficulty in recalling the first time he sought medical assistance for his back injury and estimated that he first saw Dr Costa, the only medical practitioner he has seen about the injury, approximately six months after he left the SGC. When it was put to him in cross-examination that Dr Costa’s records showed Mr Hudson’s first visit was in mid-1997, the complainant explained that he delayed seeking medical assistance because of his belief that the pain would eventually go away. Further he had been preoccupied with the unfair dismissal application and the complaint to the ADB.
52 Mr Hudson gave evidence that his memory for dates had never been good.
Mr Adams
53 Mr Adams gave evidence that on 5 December he was visited by Mr Hudson at ME’s Campsie office who told him of problems he was experiencing at SGC. A contemporaneous file note taken by Mr Adams read: ‘Steve was concerned about some other issues that have arisen along discrimination lines between him and another employee named Steve. Steve Hudson stated this other Steve was calling him a wog and goaded him to fight him. Other instances were stated. I contacted Greg Ford – asked him to look into the matter and offered a round table if need be. Greg called back and thought the matter could be dealt with internally.’
54 Mr Adams said Mr Ford did not seem surprised when he contacted him, ‘I think he had some reservations about this other Steve (Willis)’. Mr Ford denies this. Mr Adams did not hear from SGC again until December 7 when he received a copy of Mr Hudson’s letter of termination.
55 Mr Adams said the complainant also mentioned something about a buggy being driven at him in a detrimental way and something about trousers. He could not recall when this conversation took place. No file note was taken.
56 Mr Ford’s recollection of the phone conversation was limited but, he recalled saying to Mr Adams he wanted to resolve the problem in-house.
Notification of complaint
57 The complainant gave evidence that he did not complain to his co-workers about Mr Willis’ treatment ‘they all knew, there was no use complaining.’ He did, however, speak to Greg Ford. He said he told Mr Ford about the relentless questioning of his qualifications and the use of racial epithets.
58 Mr Ford’s evidence was that Mr Hudson complained to him about a week after his return from the external training course but he was unsure of the exact date. From then on he put Mr Hudson under the supervision of other staff and from that point on he was unaware of any further problem between the two. He said he spoke separately to Messrs Willis and Hudson.
59 Mr Ford’s affidavit evidence was that he recalled Mr Hudson complaining that he was unhappy taking direction from Mr Willis. In cross-examination he said Mr Hudson indicated he was unhappy with the manner the instructions were given.
60 Mr Ford’s affidavit evidence was that he put to Mr Willis the complainant's allegations of racially abusive remarks. He said Mr Willis denied these allegations but did complain about the way Mr Hudson carried out his duties and his reluctance to accept direction.
61 In Mr Ford’s opinion the problem between the two was a ‘personality thing...it was apparent to me that neither man liked the other.’
62 The complainant said that Messrs Ford, Welham and McGlynn must have overheard Willis calling him racist names. They denied this.
Performance
63 Mr Ford gave evidence that he had been aware that under the Job Skills program, there was a component of on-the-job training. He said he understood that under the program the SGC was obliged to train Mr Hudson and teach him the basic skills of green keeping.
64 Mr Ford gave evidence that Mr Hudson was reluctant to accept instructions. This affected his work. Mr Hudson told him he was reluctant to take instruction from anyone but Mr Ford.
65 Mr Ford said Mr Hudson was not proficient, in particular in the operation of the rough cutter and the raking of bunkers. He was slow at his work. These conclusions were based on complaints from other staff and his own observations. Mr Ford observed that Mr Hudson ignored advice from experienced staff, continuing to undertake tasks in the manner he wished.
66 Mr Ford’s diary (extracted below) indicates the tasks Mr Hudson was allocated and the worker with whom he was teamed:
Extracts from Greg Ford’s Diary 31 October - Fertilized and top dressed tees. Steve Willis I November - Fertilized and top dressed tees. Steve Willis 2 November - Fertilized and top dressed tees. Steve Willis 3 November - 160 Raking bunkers. Chris Rae 4 November - Off 7-18 November - Training 20 November - Clean up shed 21 November - Pumping and repairing bunkers . Steve Willis 22 November - Edging bunkers. Grant, Chris, Jase 23 November
24 November - Trimming edges .JaseT27 November - Raked bunker bottoms. Alone 28 November - Handwatered greens. Steve Willis. Grant showed SH how to cut rough 29 November - Raked bunkers Alone 30 November - Worked on 5th path. Ivan Welham 1 December - Raked bunkers. Alone 4 December - Sick 5 December - Cutting rough. Jase 6 December - Raked bunkers 7 December - Cutting rough.
67. Ford’s work diary for the week preceding Mr Hudson’s dismissal contained the following entries relevant to Mr Hudson's performance
68. Monday 5 December: Steve Hudson told by Steve Willis, Chris Stig, re operation of rough cutter not maintaining rpm-affecting quality of cut. Continued to mow at low revs after being told not to.
69. Wednesday 6 December: Steve Hudson raked sides incorrectly, not reaching level section of contour. Bought to his attention half way through job. Did not notice much in improvement in standard. Took too long. Interfered with golfers.
70. Thursday 7 December: Steve Hudson cutting incorrect areas of course. I informed him plus still cutting at too low a revs and rolling grass over, not cutting cleanly. When I pulled him up on these matters he said he didn’t like being instructed by other members of staff, only by me.
71. Mr Ford gave evidence that on 7 December he reached the conclusion that despite instruction there was no improvement in Mr Hudson’s work performance; he continued to ignore instructions. Accordingly after discussions with Club Manager, Greg Scott, a decision was made to terminate Mr Hudson’s employment.
72. In cross-examination Mr Ford agreed that prior to 5 December his diary contained no criticism of Mr Hudson’s work; nor had he raised Mr Hudson’s inadequate performance with ME.
73. Mr Ford could only recall one occasion when he commended Mr Hudson’s work: after he had cleaned up some debris at the back of the practice fairway.
74. Mr Hudson said in evidence that he enjoyed his job and performed his duties well. In his opinion he was the hardest-working man at the SGC. He gave evidence that at no stage did Messrs Welham, Ford or McGlynn complain about his work; in fact Mr Ford often commended him on his work.
Raking Bunkers
75. Mr Ford could not recall any problems with Mr Hudson’s performance on the first day he raked bunkers, 3 November, although he did not check all sixty.
76. Mr Welham gave evidence that he worked with Mr Hudson on two occasions and had no complaints: ‘We worked together all right.’ He had no complaints with the speed at which Mr Hudson carried out his work.
77. Mr McGlynn gave evidence that he and Hudson had worked together on the bunkers one morning. Mr Hudson was raking bunker sides; he was trimming them. In his opinion Mr Hudson had done a ‘normal’ job.
Rough Cutter
78. Mr Ford said on the first day Mr Hudson was rostered to operate the rough cutter he was placed under the supervision of Jase. Mr Ford could not recall any problems; indeed had there been Jase would have told him straight away.
79. Mr Ford gave evidence that Mr Hudson had difficulties in accepting instructions on how to operate some machinery, including the rough cutter. He said Mr Hudson continually operated the rough cutter on low revolutions despite instruction that it needed to be operated on high revolutions. Other staff complained to him about this.
80. Mr McGlynn gave evidence that Mr Hudson held definite opinions on how to operate SGC machinery which Mr McGlynn did not share. Mr Hudson said to him that it was better to operate a rough cutter on low revolutions, although he had previously advised Mr Hudson that the cutter had to be operated on high throttle.
81. Mr Hudson said he had not driven a rough cutter before working at the SGC. He said he was instructed on how to use the rough cutter but could have worked it out himself, because he was mechanically-minded. The only people who had spoken to him about the rough cutter were the mechanic and Mr Willis. Mr Hudson gave evidence that he said to them ‘I know that [that the rough cutter had to be operated at low revolutions ] already.’
82. Mr Welham said he learned to operate the rough cutter in about twenty minutes. Mr Caruana said it took him about a day. Mr Ford described it as a fairly basic machine to operate.
Employment of Warren Stanley
83. Mr Ford’s evidence was that it was agreed following discussions with secretary/manager Scott on December 7 that a qualified green keeper was needed to meet the Club’s staffing needs.
84. Mr Scott in a letter to the ADB dated 18 November 1996 wrote ‘the job which was elected for the person obtained from the program was simply too advanced for the level of training Mr Hudson possessed.’ He went on to state it was agreed, following Mr Hudson's dismissal that ‘only a qualified green keeper would have the required level of skill to achieve the club’s objectives, consequently a qualified green keeper was advertised and subsequently appointed.’
85. An advertisement for the position of qualified green-keeper at SGC appeared in the Sydney Morning Herald (“SMH”) on 24 November and the successful applicant Warren Stanley commenced with the respondent club on 27 December 1995
Glen Caruana
86. Mr Caruana was employed by the SGC for just over a year, about 18 months prior to Mr Hudson's appointment. His parents were from Malta.
87. He gave evidence that Mr Willis called him a ‘wog’ a few times ‘but just like a joke’. Mr Willis also called him ‘fuckhead’ and ‘idiot’.
88. On his last day at the SGC, while working on the bunker machine, Mr Willis swore at him poking him in the chest. He retaliated, punching Willis in the mouth. The police were called. Mr Caruana was summarily dismissed.
89. In cross-examination Mr Caruana agreed that prior to the day of his dismissal, his relationship with Willis was one characterised by a joking exchange of words. He said Willis ‘was a bit pushy.’
90. Mr Ford said he had never heard Mr Willis call Glen Caruana a ‘wog’. Nor had he heard reports to that effect from any of his staff. He denied being aware of the allegation that Mr Willis taunted Caruana, using racial slurs, prior to the fight which led to Mr Caruanna’s dismissal.
91. Mr Welham said he had never heard Mr Willis call anyone a ‘wog’ or shout at Mr Caruana. However he heard from other staff that Mr Willis taunted Mr Caruana calling him a ‘fucking wog’.
92. Mr Welham described Mr Willis’ performance as ‘average,’ not because of his work but because of the way he related to other people: ‘He doesn’t get on well with other people...he just basically didn’t get on well with anybody’.
The Complainant’s Health following Dismissal
- Dr Costa
93. Dr Costa gave evidence that he first saw Mr Hudson in June 1997 complaining of nervous stress, depression and back pain. The complainant told him he had been harassed by a work supervisor. He felt degraded.
94. Dr Costa diagnosed his patient as depressed and referred him to a psychiatrist, Dr Boettcher, who assessed Mr Hudson as having experienced a ‘major depressive illness.’
95. Dr Costa continued to review his patient on a regular basis because of on-going depression and chronic back pain. He has been treated with anti-depressive drugs for a long period.
96. In his report Dr Costa stated he last saw Mr Hudson in June 1999. His condition was unchanged: ‘He feels his life is totally at an end’. His relationship with his son and former de facto wife had soured.
97. In Dr Costa’s opinion his patient is unfit for heavy physical work and work requiring prolonged concentration.
98. Mr Hudson gave evidence that after the dismissal he felt ‘bad , like dirt, piece of nothing, not like a human being.’ Following his dismissal he changed from a being happy person to depressed. He is unable to maintain relationships with other people. His attempts to find a job have been unsuccessful.
COMPLAINANT’S SUBMISSIONS
99. The complainant argues that the evidence clearly establishes that by the conduct of their employee, Mr Willis, the respondent club contravened s8(2)(a) of the Act, subjecting Mr Hudson to terms and conditions of employment less favourable than the terms and conditions which would have been afforded to a person of a different race.
100. Ms Tibbey for the complainant argues that the respondent club is vicariously liable for the actions of Mr Willis as they failed to take effective steps to prevent Mr Willis’ harassment and intimidation. Mr Ford was aware or should reasonably have been aware of Mr Willis’ racist views given the similar treatment afforded to Caruana. Mr Ford failed to take effective steps to deal with Mr Hudson’s complaints. Nor did the Club take any steps to educate their employees or provide training on anti-discrimination policies.
101. The complainant submits that the SGC’s explanation that Hudson was terminated because of poor performance and a changed assessment of staffing needs cannot be accepted. Ms Tibbey argues that the evidence does not support a finding that Mr Hudson's performance was inadequate. In Mr Hudson’s opinion he had satisfactorily carried out all duties and testified that he received no complaints about his performance. This opinion was corroborated by the evidence of Messrs Welham and Mr McGlynn( in relation to the raking of bunkers.)
102. Mr Ford’s diary entries, relied on by the respondent club to support the claim of poor performance, are, argues Ms Tibbey, nothing more than concoctions used to construct a defence that the sole reason for dismissal was performance shortcomings. Ms Tibbey argues that it is no coincidence that the diary entries appeared immediately following Mr Adams’ 5 December phone call. Faced with scrutiny by an outside body, Ms Tibbey argues, the respondent club’s took the ‘easy’ course, sparing the SGC from a looming internal problem.
103. Mr Willis’ assessment of Hudson, that Mr Hudson was slow and incapable in his work, was according to Ms Tibbey, apparently based on a prejudice that persons from non-English speaking backgrounds are slow, dimwitted and incapable. Mr Willis’ view, asserts Ms Tibbey, was probably transmitted to Mr Ford and undoubtedly coloured his perceptions of Mr Hudson’s performance.
104. Ms Tibbey argues in the alternative that if it is established that there was a deterioration in Mr Hudson's performance, it could be attributed to the abusive atmosphere in which Mr Hudson was forced to work.
105. Ms Tibbey disputes the second ground cited for the dismissal, namely the changed staffing needs of the club. Ms Tibbey asserts that the timing of the placement of the job advertisement, reveals the claim to be spurious. It had always been the SGC’s intention, argues Ms Tibbey, to replace Mr Baker with a qualified green keeper. The employment of Mr Hudson was an additional appointment.
106. Ms Tibbey argues that the only reasonable conclusion that can be drawn from the evidence is that the reason for Mr Hudson’s dismissal was not poor performance or changed staffing needs but the reluctance of SGC management to confront Mr Willis’ race-based treatment of her client. Mr Adams’ notification of Hudson’s formal complaint, and the dismissal some three days later cannot be dismissed as coincidental. The only reasonable conclusion to draw from the timing of these events is that they were related events.
RESPONDENT’S SUBMISSIONS
107. Counsel for the respondent, Ms Brus argues that the evidence does not support the complainant’s claim that he was subjected to a working environment of racial harassment and abuse. She submits that the complainant’s account of the ‘back incident’ is a series of fabrications and exaggerations, bringing into doubt his credit as a witness.
108. Ms Brus invites us to conclude that Mr Hudson wrongly interpreted some of Mr Willis’ remarks. He saw questions about his qualifications and where he came from as ‘racist’ because ‘it’s not his job. His job is to tell me how to do things.’
109. That the ‘trouser incident’ occurred is not disputed. Ms Brus argues, however, that there is no evidence to support the allegation that Willis’ behaviour was on ‘the grounds of race’. The complainant has failed to establish any causal link between allegedly being called a ‘fucking wog’ and the alleged incidents of violence and intimidation.
110. Ms Brus argues that there is no evidence to support Mr Hudson's claim that Mr Ford was aware of the racist taunts. While Mr Hudson had advised Mr Ford of problems with Mr Willis, Mr Ford denies being told about the racial taunts. In any case, Mr Ford responded appropriately by placing the complainant with other employees.
111. Ms Brus argues that the proposition that Mr Ford had been put on constructive notice by the earlier behaviour of Willis towards Mr Caruana is not supported on the evidence. Mr Caruanna’s evidence was that Willis had called him a ‘wog’ a few times as a joke and that he had not complained to Mr Ford. As Caruana did not see his problems with Mr Willis to be related in any way to his Maltese parentage, it is not sustainable that Mr Ford would have reached the opposite conclusion.
112. Ms Brus argues that her client’s explanation for the dismissal, namely poor performance, is supported by the evidence. The evidence establishes that Mr Hudson refused to follow instructions as directed. He repeatedly refused to operate the rough cutter on low throttle as directed; he was slow in his work; he unreasonably refused to accept instruction from anyone but Mr Ford. He failed to appreciate the need to complete tasks with reasonable speed so that the course could be clear for the golfers.
113. That Mr Ford rejected Mr Adams’ offer to mediate is not, argues Ms Brus, evidence of a cover-up. Rather it represents the assessment of an experienced and responsible manager that the problem was best dealt with in-house.
114. The absence of a written policy on anti-discrimination is not evidence that the respondent club condoned alleged racist activity.
FINDINGS
- Onus of Proof
115. In determining whether the complainant has substantiated his complaint, the Tribunal has applied the civil standard of proof. However we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the respondent : see the remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR at 361-362.
Application of the rule in Jones v Dunkel
116. The complainant submits that, because of the respondent club’s failure to call Mr Willis as a witness, and their ‘meagre efforts’ to locate him, that an inference should be drawn that his evidence would not assist the respondent. The so-called ‘rule in Jones v Dunkel (1959) 101 CLR 298 is, in fact, a discretionary principle to the effect that the unexplained failure by the party who might be expected to call a particular witness, or to produce a particular piece of evidence, may lead to an inference being drawn that the witness or evidence would not have assisted that party’s case. ( See also Payne v Parker [1976]1NSWLR 191 at 201-2 per Glass JA where he discusses which party might be expected to call a non-party witness.) In this case, we agree that it would have been natural to expect the respondent club to call Mr Willis. An explanation for the respondent club’s failure to call the witness was tendered. The complainant argues that it is unsatisfactory, but, curiously, when the complainant’s legal representatives tried to locate Mr Willis they also met with no success. It seems reasonable, therefore, on that basis alone, not to draw the adverse inference against the respondent club.
117. In any event, it seems to us to be immaterial because, for other reasons, we have accepted the evidence that Mr Willis did racially taunt Mr Hudson and conduct himself in other offensive ways.
Treatment by Willis
118. Mr Hudson’s evidence that Mr Willis intimidated him, calling him a ‘fucking wog’ was uncorroborated but not contradicted.
119. Mr Hudson’s claim that he had been harassed by Mr Willis is consistent with the file note taken by Mr Adams on 5 December. It is also supported by Mr Ford’s evidence that the complainant came to him about Mr Willis’ racial taunts.
120. Ms Brus for the respondent club argues that Mr Hudson’s credit is in doubt, given the implausibility of his evidence in relation to the back incident. There is no doubt that Mr Hudson’s testimony contained a number of inconsistencies. His recollection of dates, was at best, unreliable. Some of his evidence was not only self-serving but exaggerated or embellished, for example, his opinion that he was the hardest-working employee at the SGC.
121. No doubt some of Mr Hudson’s evidence was exaggerated to an extent. However, while the Tribunal has not been persuaded that Mr Hudson has discharged the onus of proof on certain aspects of his complaint, for example, in relation to the back injury and the ‘shaving incident’, we are persuaded that in relation to other allegations his evidence is plausible and should be accepted. It is always permissible for a Tribunal of fact to accept some parts of a witness’ evidence and reject others. In this case, where there is some independent corroboration of Mr Hudson’s evidence available either directly or circumstantially, we take the view that his evidence should be accepted on the balance of probabilities for reasons which we outline below.
122. Mr Hudson’s claim that fellow employees overheard Willis’ racial taunts is not supported by the evidence of Messrs Ford, McGlynn and Welham. We accept their evidence. This inconsistency does not of itself bring Mr Hudson’s credit into question. It is plausible that Mr Hudson simply assumed other employees were aware of what to him, was (understandably) the focus of his attention.
123. Mr Hudson’s evidence of being racially abused is supported by the facts that he complained contemporaneously to Mr Adams and to Mr Ford. Later on he was treated for depression and gave a similar account to his treating doctor. We find that Mr Hudson was subject to racist taunts and other verbal abuse by Willis. This occurred not only when Mr Hudson was paired to work with Mr Willis but also on occasions when Mr Hudson worked alone. This abuse was persistent, unwelcome, gratuitous and designed to intimidate and insult Mr Hudson.
Trouser Incident
124. Mr Hudson's account of the trouser incident is supported by Mr Welham’s evidence except on one point: the racial abuse that Mr Hudson alleges accompanied the attack. In our view it is implausible that this attack occurred in silence, given the nature of the attack, and as found by the Tribunal, the persistent racial abuse to which the complainant was subjected. The most likely explanation for Mr Welham’s failure to hear anything said between the two men or see their lips move is the direction from which Mr Welham approached the altercation. He was 20 metres away when he first became aware of the incident; Mr Willis’ back faced him on approach.
125. The Tribunal accepts Mr Hudson’s account of this incident and finds that the trouser incident was vicious, unprovoked and accompanied by verbal, including racial, abuse. The conduct of which Mr Hudson complains lends further support to his allegation of generalised racial vilification by Mr Willis.
Shaving Incident
126. The complainant's allegation concerning the shaving incident is uncorroborated save for a vague recollection by Mr Adams that Mr Hudson had mentioned something along those lines to him after the dismissal. The claim that the incident was reported to Mr Welham is denied.
127. The Tribunal finds that the evidence as presented is insufficient to support the complainant’s allegation in relation to this incident.
Back Incident
128. Ms Tibbey submits that, Mr Hudson’s evidence in relation to the back injury was consistent and unfaltering. While in our view little turns on the inconsistencies in relation to dates and the confusion over the terms ‘feet’ and ‘knees,’ the weight of evidence does not support Mr Hudson’s version of events. His evidence on significant points, namely the type of vehicle driven and the telegraph pole is contradicted by the respondent club’s witnesses and Mr Caruana.
129. The evidence establishes that Mr Hudson did not seek medical assistance until some 18 months after the alleged accident occurred. It may be, as claimed, that Mr Hudson procrastinated because he thought the pain would go away and he was distracted by his involvement in various legal proceedings. That Mr Hudson delayed seeking treatment does not of itself establish that the accident did not occur, but neither does it lend credence to his claim.
130. Ms Tibbey submits that the respondent club is estopped from denying that the back injury occurred because the matter was the subject of a successful action in the Workers Compensation Court. We do not accept this argument. The matter was not litigated but subject to an out of court, without prejudice settlement.
131. It may be that there was an accident involving Mr Hudson in a vehicle driven by Mr Willis. However the weight of evidence before the Tribunal does not support a finding that the accident described by Mr Hudson in fact occurred, or occurred in the way he described.
Notification of complaint
132. Mr Ford’s evidence was that about a week after returning from his training course [about 27 November] Mr Hudson complained to him that he had problems taking instructions from Willis. It is unclear from Mr Ford’s evidence when Mr Hudson first complained to him about race abuse. Mr Hudson’s evidence is equally unhelpful in assisting the Tribunal to establish when the first complaint of racial abuse was made . Taking into account the evidence of both Messrs Hudson and Ford we find it more probable than not, that Mr Ford first became aware of Mr Hudson’s race allegation on or about the same time he was advised by Mr Hudson that he had difficulties accepting instructions from Mr Willis i.e. about November 27 .
133. It is clear from the evidence of both Mr Ford and the complainant that Hudson complained to Ford on at least two occasions. Mr Ford put these allegations to Mr Willis who denied the allegations.
Glen Caruana
134. Mr Caruanna’s evidence that Mr Willis gave him a hard time calling him a ‘wog’ is accepted by the Tribunal. It is apparent from the evidence that Mr Welham was aware of the allegation of racist name-calling but made no attempts to investigate the veracity of this rumour. On balance we accept Mr Welham’s evidence that he did not report this name-calling to Mr Ford.
135. The direct evidence as to whether Mr Ford knew of the racist name-calling from other staff is inconclusive. On Mr Caruanna’s account, he did not complain about racist abuse and tended to shrug it off. He said after the incident that led to his dismissal, Mr Ford heard some of his ‘story’. Whether this report mentioned racist taunts is unclear from Mr Caruanna’s evidence. On balance, while the Tribunal has a strong suspicion that Mr Ford may have heard about the race allegations through other staff, we are not persuaded that the complainant has discharged the onus of proof on this point.
136. Ms Tibbey argues that Mr Ford was put on notice following the Caruana incident that Mr Willis had problems with persons of a non-English speaking background. In our view, this assertion is not supported by the evidence. While not welcoming Mr Willis’ treatment Mr Caruana dismissed the racist taunts as ‘a bit of a joke’. Ms Tibbey is correct in her submission that there is no requirement that the complainant recognise their treatment as discriminatory, for a claim of unlawful discrimination to succeed under the Act. Indeed, it may be that a victim of repeated discrimination becomes oblivious to what any reasonable person would characterise as discriminatory treatment. In this case Mr Caruanna’s dismissive treatment of Willis’ remarks does not of itself establish that he was not subject to discrimination . It does, however, lend support to Mr Ford’ claim that Caruana had not complained to him and he was otherwise unaware of the allegations of racial taunts.
137. The evidence of Mr Welham is that he was aware from other staff of the racial taunts allegation. It is clear from his evidence that he took no steps to determine whether this allegation was something other than idle gossip.
Reason for Dismissal
138. The evidence of Mr Ford is that the complainant was dismissed because of poor performance and resistance to instruction. We will deal with our findings as to whether poor performance was the sole reason for the dismissal at a later point.
139. Mr Ford’s evidence that Mr Hudson was reluctant to accept instruction on the operation of the rough cutter was supported by the evidence of Mr McGlynn. Mr Hudson’s own evidence supports the opinion held by Messrs McGlynn and Ford, that he was a man who over-estimated his mechanical abilities. This is consistent with the evidence of Messrs Ford and McGlynn that Hudson refused to accept instruction. There is no evidence to support the assertion that Mr Hudson was provided with inadequate tuition on the operation of the rough cutter.
140. Mr Ford’s evidence that Hudson was not adept at raking bunkers is not supported by the evidence of Messrs Welham McGlynn or the complainant himself. On this point we prefer the evidence of the complainant over that of Mr Ford.
141. We accept Ms Tibbey’s submission that Mr Stanley was not hired to replace Mr Hudson, but Mr Baker, who had left the SGC in October. In our view, it is implausible that the respondent club came to the conclusion to replace Hudson with a qualified green keeper as early as November 23, the last day the advertisement could have been supplied to the SMH. At that time Mr Hudson had worked for the respondent club for seven days .
142. We find the decision to appoint Mr Stanley to be independent of any decision relating to Mr Hudson. This finding is supported by the contract between ME and the respondent club which provides that ‘placements are to be additional to the normal workforce of the employer.’
143. We accept Mr Ford’s evidence that he observed Mr Hudson to be slow in performing some of his allocated tasks. There is no evidence to support a finding that Mr Ford’s opinion was contaminated by Willis, who, the weight of evidence shows, probably held negative stereotyped views on people of a non-English speaking background. This contention is purely speculative.
CONCLUSIONS
144. The test of race discrimination set out in section 7 of the Act requires the complainant to establish:
145. first, that he was treated less favourably than a person of another race in the same circumstances or circumstances that are not materially different ; and
146. second, that the less favourable treatment was on the grounds of his race or a characteristic appertaining generally to persons of that race, or a characteristic that is generally imputed to persons of that race.
147. If these two elements are established, the Tribunal must determine whether the discrimination occurred in an area of activity proscribed by the Act.
Less favourable treatment
148. The Tribunal must determine whether Mr Willis treated Mr Hudson less favourably than he treated or would have treated a person of a different race, in the same circumstances or circumstances that are not materially different.
149. It is not enough that the complainant believes he was the subject of differential treatment. The evidence must objectively support that belief.
150. In assessing whether the complainant was subject to differential treatment the Tribunal must first determine whether an actual comparator can be identified, that is an employee in the same or similar circumstances as Mr Hudson, but for race. From the evidence it would appear there was no other employee in a similar position to Mr Hudson, whether or not race was in issue. That is, there were no other employees who had been placed with the club through a labour market training scheme.
151. In the absence of an actual comparator the Tribunal must determine whether the treatment to which the complainant was subjected was objectively less favourable than the treatment that would have been afforded to a notional or hypothetical employee in circumstances not materially different to Mr Hudson but of a different race.
152. The Tribunal has found that Mr Hudson was subject to unwelcome abuse and harassment. Further we are satisfied that at least one complaint involving physical harassment namely the trouser incident, has been proven to our comfortable satisfaction.
153. There is some evidence that may support a finding that Mr Willis was not a model employee and had difficult relationships with his co-workers. He was portrayed by Mr Welham as a man who did not get on with anyone. If the evidence revealed that Mr Willis ill-treated all or many of his colleagues in a similar fashion to that he treated Mr Hudson , this would be strong evidence which may negate a finding that Mr Hudson was the subject of differential treatment. However, this was not the case. With the exception of Mr Caruana there is no evidence that other employees of whatever race, were subject to a similar pattern of treatment. Even Mr Welham, who of the respondent club’s witnesses was the most openly critical of Mr Willis, made no suggestion that Willis treated other employees in the same way as he treated Mr Hudson. In any case, section 7 of the Act requires the complainant not to prove that other non-anglo employees were also subject to racial abuse but to establish on balance (applying the Briginshaw standard ) that he was treated less favourably than an employee of a different race, in circumstances not materially different to his.
154. Critical to the concept of less favourable treatment is the notion of detriment. It is not enough that the complainant be treated differently, such treatment must have adverse consequences for the complainant. Further the detriment must be real. It cannot be trivial. See, for example, Langley v University of NSW (1984) EOC92-018.
155. We are persuaded that Mr Willis’ treatment of Mr Hudson subjected the complainant to a detriment. He was harassed and intimidated . This no doubt adversely effected his enjoyment of his work and possibly interfered with his ability to perform his work. The detriment could not be described as trivial. On balance we are persuaded that Mr Hudson’s treatment was less favourable than would have been afforded to an employee of a different race, in circumstances not materially different to the complainant’s.
On the grounds of race
156. Having decided that Mr Hudson was subjected to less favourable treatment, we must now determine whether the treatment was on the grounds of race.
157. The authorities clearly provide that to succeed in his claim Mr Hudson must establish an identifiable causal link between his race and the acts of Mr Willis. In Director General of Education v Brine IIR at 95 Street CJ stated :
158. [T]o amount to unlawful discrimination prohibited by the Act the characteristic which will provide the ground must have a proximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative effect upon the decision to commit or the committing act of discrimination on the grounds of race.’
159. Mr Willis’ motive for harassing Mr Hudson is irrelevant. As outlined by Kirby J in relation to the definition of direct discrimination under the Western Australian Equal Opportunity Act 1984:
160. ‘The weight of authority supports the proposition that it is unnecessary for a complainant to establish that the alleged discriminator intended or indeed had the motive to discriminate.’
161. We note that there is some authority to support the proposition that in cases the reason for the alleged discriminatory treatment may be relevant. See for example Commonwealth v Humphries [1998] 1031 FCA per Keifel, J at 12.9; HREOC v Mount Isa Mines LTD(1993) 118 ALR , per Lockhart J at 322.
162. There may be, and very likely were, many reasons why Mr Willis targeted Mr Hudson. It may be that Mr Willis took an objection to the use of public money being used to assist the unemployed or that he delighted in bullying new and less experienced employees. This does not negate a finding that the harassment of Mr Hudson was on the grounds of his race. Section 4A of the Act makes clear, it is not necessary to establish that Mr Hudson’s race was the only, or indeed dominant, reason for the acts of harassment of Mr Willis.
163. The constant use of racial slurs lends strong support to the complainant’s submission that Mr Willis’ harassment was on the grounds of race. It is our view that once a finding of racial abuse has been made, the inference is inescapable that this treatment was on the grounds of the complainant’s race.
164. Ms Brus for the respondent club argues that there is no evidence to link the ‘trouser incident’ and racial abuse. The Tribunal has accepted Mr Hudson’s evidence that he was racially abused during this incident. His evidence on this point supports an inference that Mr Willis’ behaviour was motivated, in part at least, by Mr Hudson's race.
165. On balance we find that the complainant has made out his claim that the less favourable treatment, namely the racial taunts, general verbal abuse and harassment, together with the trouser incident was meted out on the grounds of Mr Hudson's race.
166. Accordingly we conclude that Mr Willis’ behaviour amounts to discrimination within the meaning of s7 of the Act.
Terms and Conditions of Employment
167. Having determined that Mr Willis’ treatment of Mr Hudson, was both less favourable and on the grounds of race the Tribunal must now determine whether, as a result, Mr Hudson was discriminated against in relation to his terms and conditions of employment.
168. Mr Hudson's contract of employment does not address matters relating to harassment and discrimination. This is not fatal to his claim. The authorities clearly establish that ‘terms and conditions of employment’ embrace not only the provisions contained in the formal written employment contract but also a broad range of matters relevant to the employment relationship, including the working environment.
169. As observed by the Tribunal in Prakash -v- Bob Brog Enterprises Pty Limited [1999], NSWADT 73 at[44] not all cases of racial abuse amount to unlawful discrimination:
170. ‘In the fields of employment ... there are a number of cases in which racially based abuse has been held to constitute unlawful discrimination (see e.g. Ardeshirian v Robe River Iron Associates (1990) EOC 92- 299; Metwally v University of Wollongong (1984) EOC 92-030; Rugema v Gadsten Pty Ltd and Derkes [ 1997] HREOCA 34. Also there are cases in which racially based abuse has been held to fall outside the Act (see e.g. Hume v Mulheron [1996] NSWEOT; Gomez v Burgmann Seals Australia Pty Limited [1997] NSWEOT).’
171. As noted by the Tribunal in Prakash whether workplace racial abuse amounts to unlawful discrimination will always be a matter to be determined on the facts presented in each case.
172. In this case Mr Hudson was treated to repeated harassment; he was intimidated; the harassment was gratuitous; Mr Hudson did not retaliate. It could not be said that the treatment was nothing more than a robust exchange between employees. Mr Willis’ ill treatment of him had become a feature of Mr Hudson’s working environment. It was not incidental or peripheral to his day-to-day experience at the SGC. It was as much a feature of his working environment as the physical surrounds in which he worked.
173. That Mr Hudson was not always paired to work with Willis does not persuade the Tribunal that the harassment did not adversely impact on his working environment. Mr Willis’ harassment of Mr Hudson was not confined to situations where he worked directly with him. The size of the course meant that it was impossible for the movement of employees to be monitored closely. When working alone Mr Hudson was faced with the distressing prospect that Mr Willis may approach at any time and subject him to gratuitous abuse. He could not predict when these incidents may occur.
174. The fact that Mr Willis was the sole employee who treated Mr Hudson in this fashion does not mean that his employment conditions were not adversely effected. In reaching this conclusion we note: Mr Willis was senior to Mr Hudson; the frequent interaction between work colleagues; the limited ability of Mr Hudson to remove himself from situations where he may be targeted by Mr Willis; and importantly, the lack of support provided by club management to Mr Hudson despite his complaints.
175. The Tribunal is satisfied that, as a result of the acts of Mr Willis, Mr Hudson was afforded less favourable treatment on the grounds of race in relation to the terms and conditions of employment.
Vicarious Liability
176. At common law employers are vicariously liable for the authorised acts of their employees carried out during the course of their employment.
177. Section 53 of the Act provides that an employer will be liable for an act of their employee which amounts to a contravention of this Act, unless the employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
178. Subsection 53(3) provides that an employer may avoid liability where the employer took all reasonable steps to prevent the agent or employee from contravening the Act.
179. To avoid liability for the acts of its employee Willis, the respondent club must establish that it did not expressly or by implication authorise those acts, subject of the complaint.
180. There is no evidence to support a finding that the management of the SGC expressly authorised the harassment. The Tribunal must therefore decide whether the evidence supports a finding that it authorised the acts of Willis by implication.
181. Mr Ford’s affidavit evidence is that Mr Hudson complained to him alleging racial and abusive remarks. These allegations were put to Willis on two separate occasions and denied by him on both. It is apparent from the evidence, that Mr Ford accepted Mr Willis’ denials. Mr Ford’s evidence was that he saw the problem as a ‘personality thing.’
182. It is arguable that Ford’s acceptance of Willis’ denials cannot be said to amount to implied authorisation within the meaning of s53(1) of the Act. Mr Ford was, after all, faced with two conflicting versions of events with no supporting evidence of Hudson’s complaint. The fact that the complaint was raised with Willis indicated that Ford did not approve of this type of behaviour. However, in our view, the ‘trouser incident’ changes the weight that Ford should reasonably have afforded Hudson’s complaint. Here there was evidence of harassment of a physical nature, witnessed by Mr Welham. Mr Willis’s explanation to Ford, that he was assisting the complainant to take them off, is simply implausible. This is especially the case given Mr Hudson’s earlier complaints of verbal abuse. Further we note that Ford should have taken into account that the innocent tone of Mr Willis’ version of this event, was at odds with the observations of Mr Welham, who saw the incident as humiliating for Hudson, warranting his intervention. While denied by Welham, it is clear from Ford’s evidence that he learnt of the ‘trouser incident’ from Welham.
183. The Tribunal finds that Mr Ford’s investigation of the trouser incident was at best cursory. The complaint was put to the perpetrator, his denial was accepted. Once a complaint of this nature has come to light, in our view, it is irrelevant whether Mr Ford personally approved or disapproved of this behaviour. His failure to take positive steps (other than placing Mr Hudson under the direct supervision of others) in our view implied to Willis that this action was condoned.
184. Having found that the evidence supports a finding that Mr Willis’ behaviour was by implication, authorised by Mr Ford, it remains for us to consider whether the respondent club took reasonable steps to prevent this treatment. The respondent bears the onus of proof of satisfying the Tribunal that it did not authorise the discriminatory behaviour: s.109 of the Act
185. The Tribunal notes that no formal anti-discrimination policy or training was in place at the time of Mr Hudson's employment. We accept Ms Brus’s submission that the absence of formal policies is not evidence that the respondent club condoned the activities of Mr Willis. However it is relevant in an assessment of whether the respondent club took all reasonable steps to prevent Mr Willis from harassing Mr Hudson.
186. Had a written policy been in place of which all staff were aware and /or training provided, Mr Welham may not have been so quick to dismiss staff rumours relating to Caruana and recognised it as a potentially serious matter that, at the very least, warranted a mention to Mr Ford.
187. Equally, appropriate training may have better equipped Mr Ford with the skills to properly investigate Mr Hudson’s complaint. Instead it would appear that the extent of the investigation was that the complaint was put to Mr Willis and his denial accepted. No joint meeting was held which may have allowed Mr Ford to test Mr Hudson’s claim and Mr Willis’ denial. There is no evidence that any efforts were made to investigate the veracity of the complaint with other staff.
188. Ms Tibbey argues that the failure of Mr Ford to accept Mr Adams’s offer of a round-table discussion is further evidence that the respondent club failed to take all reasonable steps to prevent Mr Willis’ behaviour. Ms Brus dismisses this submission, arguing that Mr Ford, as an experienced manager, considered it more appropriate in the circumstance to deal with the matter in-house.
189. Of itself, Mr Ford’s failure to take up Mr Adams’ offer is not sufficient to justify a finding that not all reasonable steps have been taken to prevent Willis’ harassment. The Act does not oblige employers to call upon the assistance of third parties when dealing with complaints of discrimination.
190. However the failure by Mr Ford to accept ME’s offer of assistance, together with the absence of any policy on anti-discrimination properly communicated to staff, and the inadequate investigation of Mr Hudson's complaints leads the Tribunal to the conclusion that inadequate steps were taken by the respondent club.
191. Before leaving this issue, we are obliged to consider whether the steps taken by Mr Ford to separate Hudson and Willis allows the respondent club to rely on the s.53(3) defence.
192. The evidence shows that the two were paired to work together up until what the Tribunal found was the probable date of Mr Hudson’s first complaint i.e. 27 November. However Mr Ford’s December 5 diary entry establishes that while Mr Hudson may not have been paired to work with Mr Willis from that time, the two continued to have authorised work contact, albeit to a lesser extent.
193. Even had management succeeded in ensuring that Hudson was paired with someone other than Willis, this would not of itself be sufficient for the purpose of the s53(3) defence. It is apparent that there are times, such as meal breaks and ‘smokos’, when all employees come together. Rostering Willis and Hudson apart did not address the problem of Willis’ unsupervised access to the complainant when he was rostered to work alone.
194. We therefore find that the respondent club is vicariously liable under s.53(1) of the Act for the acts of Mr Willis which resulted in Mr Hudson being afforded less favourable terms and conditions of employment, in contravention of s8(2)(a).
Dismissal
195. In relation to the dismissal, the issue we have to decide is whether the decision to dismiss Mr Hudson on December 7 constitutes less favourable treatment on the grounds of his racial origin. There is no direct evidence that the complainant's racial origin was an operative factor in the decision to dismiss him. Therefore the issue for us to determine is whether the circumstances of the case support the inference that the complainant's racial origin was an operative factor in the decision to dismiss him. When making this determination, however, it is well-established that discrimination cannot be inferred where more probable and innocent explanations are available on the evidence : see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319.
196. Ms Tibbey submits that the reason Mr Hudson was dismissed was Mr Ford’s reluctance to confront and resolve the problem between her client and Willis. The Club then proceeded to construct a case against Mr Hudson which was used to justify his dismissal on the basis of poor performance.
197. The complainant argues that there is a strong circumstantial case that this is so, or which, at the very least, casts doubt on the genuineness of the reasons given by the respondent club for sacking Mr Hudson. Ms Tibbey argues that the combination of the following facts leads to the conclusion that there was a causal connection between Mr Hudson complaining about being racially harrased and his dismissal:
- Mr Hudson was treated in an offensive and racially discriminatory fashion by Mr Willis;
Mr Hudson complained to his supervisor about it rather than shrugging it off or treating it as some sort of pathetic joke;
Mr Hudson also raised the issue with ME who in turn raised it with Mr Ford;
198 only at that point, having been put on notice of the complaint to ME by Mr Hudson, did Mr Ford start keeping diary notes concerning Mr Hudson’s allegedly poor performance, although there was nothing to indicate that his performance had taken a sudden turn for the worse at that stage; and
199 the decision to hire Mr Stanley was made independently of any considerations concerning Mr Hudson’s position
200 The club asserts that Mr Hudson was not a satisfactory worker. It is said that, because of his reluctance to accept instruction or guidance from anyone other than Mr Ford, the complainant was also a difficult employee to supervise. His persistence in using the rough cutter inappropriately and therefore ineffectually is an example of a more general reluctance to conform with directions and instructions he was given. There is reasonable, credible evidence from Mr Ford and Mr McGlynn supporting this assertion.
201 Mr Hudson denies any fault in his performance. We find his denials, given that he had had no previous experience as a greenkeeper, difficult to accept in full. It would be reasonable to expect that the performance of a person under training would not be as proficient or efficient as an experienced operator in the field in question. But a combination of poor performance (however that is gauged) and a reluctance or refusal to accept appropriate instruction and training will inevitably retard, if not halt altogether, the trainee’s progress.
202 For reasons given above, we accept that Mr Hudson was not the proficient employee he claimed to be, and that there may have been sufficient reasons to dismiss him legitimately. The question is, however, whether the decision-making process was contaminated by the consideration that his relationship with Mr Willis (who, apart from his offensive behaviour to other employees, was a valued and efficient worker) was sour and causing problems for management. If it was, the question of whether or not the dismissal would otherwise have been justified on legal grounds is immaterial -- it would follow that the decision to dismiss was, at least in part, based on considerations which ultimately flow back to Mr Hudson’s race.
203 It is to be noted, that we are not considering the issue of whether or not the dismissal was unfair on other grounds, (which may give rise to an action under s84 of the Industrial Relations Act 1996). Counsel for the respondent club concedes that, with the benefit of hindsight, ‘procedures adopted by the Golf Club in addressing Hudson’s poor performance may... have been better executed’, but says that there is no evidence that the dismissal was racially based or contaminated by such a consideration. It is for the complainant to prove, on the balance of probabilities, that his race was an operative factor in this decision, and that there is no more probable and innocent explanation.
204 Is it then merely coincidence that Mr Hudson was dismissed shortly after complaining, as the club asserts, or was there an improper, racial factor in play? Certainly, in our view, the combination of circumstances pointed to by Mr Tibbey raises a strong suspicion that that the decision was infected with a racially discriminatory element.
205 Although, there is some evidence which may suggest that Mr Hudson was a poor employee (and that argument is mitigated to some degree by the fact that he had been working for the club only for a short period), it is appears to us that race was an operative factor in his dismissal. By this we do not mean that Mr Ford or the management of the club took a crude racial approach towards Mr Hudson. It is all too convenient to blame the victim and get rid of the problems of (a) poor performance and (b) disharmony in the workplace by getting rid of the newcomer whose arrival has innocently triggered some sort of prejudicial conduct. Accordingly, we find that the respondent club has discriminated against the applicant in contravention of s8(2)(3) of the Act.
RELIEF
- Damages
Economic Loss
206 The applicant seeks an order for damages for loss of income.
207 Section 113(1)(b)(i)of the Act permits the Tribunal to order a respondent to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct.
208 The evidence before the Tribunal is that Mr Hudson was contracted to the SGC for 26 weeks on a weekly wage of $300. At the time of his dismissal he had been employed for six weeks. On December 7 he was given one week’s notice of termination. He did not return to work after December 7. For the purpose of calculating damages we will proceed on the basis that the notice period was paid out.
209 The calculation of damages in this case is complicated by the payment to Mr Hudson of an out-of-court settlement under the Workers Compensation Act and Mr Hudson’s claim, supported by the evidence of Dr Costa, that he was unfit for manual work following his dismissal.
210 The task of calculating damages for loss of income is further complicated as the Tribunal has before it limited evidence on what sum, if any, should be deducted for mitigation. We have no evidence as to the quantum of the settlement. Our task is further complicated as the party’s legal representatives have put to us conflicting submissions on whether this settlement covered loss of income. We have not been provided with the terms of settlement or the application for determination.
211 Before determining this issue we seek submissions from the parties.
212 We reject Ms Tibbey’s submissions that in our calculation for damages we should include an amount for the period beyond the 26-week contract period. We are not persuaded, in light of the evidence before us on Mr Hudson’s performance, that it is probable that Mr Hudson’s employment would have have been extended.
Non-economic loss
213 The evidence before the Tribunal is that following his dismissal Mr Hudson was depressed; he had difficulty in maintaining relationships; he felt worthless.
214 As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 543 (at 543), the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult.
… damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant’s relationships with other people are not susceptible to mathematical calculation…To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.
215 Counsel for the respondent club argues that in calculating damages under this heading the Tribunal should take into account the relatively short period Mr Hudson was employed:19 days. While this is a factor that must be given due weight we note that in calculating damages ‘the damage is not to be ignored or discounted because the effect of the conduct on the complainant is unusually severe’ per Wilcox J in Hall v Sheiban (at 544). It may be that another person would not have been so acutely effected by such an experience given the extremely short period of the employment. However, it is well established that that in calculating damages for unlawful discrimination the principles of tort apply. Accordingly the respondent club must take the applicant as they find him.
216 From the evidence of both Dr Costa and Mr Hudson it is our view that it is reasonable to conclude that Mr Hudson’s depression is attributable in part to his back injury (however that was caused), associated chronic pain and consequent inability to obtain manual work. The figure awarded for non-economic loss has therefore been discounted.
217 Taking into account the factors as stated above we award Mr Hudson the sum of $3,000 for non-economic loss.
Summary
The Tribunal orders that:
1. The respondent pay to the complainant within 21 days the sum of $3,000.00 for non-economic loss.
2. The parties provide to the Tribunal further submissions, as directed by the registrar, on the calculation of damages for economic loss.
3
8
1