JOHNSTON and DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES
[2019] WASAT 21
•11 APRIL 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: JOHNSTON and DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES [2019] WASAT 21
MEMBER: MR D AITKEN, SENIOR MEMBER
HEARD: 6 DECEMBER 2018
WRITTEN CLOSING SUBMISSIONS FILED
11 JANUARY 2019
DELIVERED : 11 APRIL 2019
FILE NO/S: EOA 21 of 2018
BETWEEN: DONNA-MARIE JOHNSTON
Applicant
AND
DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) - Discrimination on the ground of race - Discrimination in employment - Victimisation - Damages for hurt and humiliation
Legislation:
Equal Opportunity Act 1984 (WA), s 36, s 36(1), s 36(1)(d), s 37, s 37(2), s 37(2)(a), S 37(2)(d), s 50, s 50(d), s 67, s 83(1), s 83(4), s 83(5), s 89, s 90, s 127, s 127(b), s 127(b)(i), Pt III
Result:
Complaint successful in part
Compensation of $2,000 awarded
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Berson |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Pickett and Chan [2010] WASAT 55 (2009) 68 SR (WA) 165
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Ms Donna-Marie Johnston (Ms Johnston) is an Aboriginal Wongutha/Martu woman who was born in Kalgoorlie, Western Australia and grew up in and around small Aboriginal communities in the Goldfields.
Ms Johnston says that the reason she left her country and her extended family in Kalgoorlie was to continue her passion working with families, helping them to make change and to strive for a better future. Ms Johnston says that she accomplished this when she made the move to the Pilbara area of Western Australia to work for the respondent in the area of child protection and family support.
Between 14 March 2012 and 14 November 2017, Ms Johnston was employed full-time by the respondent as a field worker based in South Hedland, Western Australia.
On 25 January 2018 Ms Johnston lodged a complaint (Complaint) with the Commissioner for Equal Opportunity (Commissioner) under s 83(1) of the Equal Opportunity Act 1984 (WA) (EO Act):
•Firstly, in respect of a meeting held on 3 November 2016 (3 November 2016 Meeting) which was called by the respondent's District Director for the Pilbararegion, Ms Natasha Bargeus (Ms Bargeus) and at which she met with Ms Johnston and two of her Aboriginal work colleagues, Ms Lucilla Bin Salleh (Ms Bin Salleh) and Ms Lynette O'Donoghue (Ms O'Donoghue); and
•Secondly, in respect of a change by the respondent, some time prior to August 2017, in the designation of Ms Johnston's employment position to a 'section 50(d) position' (Section 50(d) Position). This is a reference to s 50(d) of the EO Act.
The Complaint alleges discrimination on the ground of race in employment and victimisation.
Section 83(4) of the EO Act provides that the Complaint had to be lodged with the Commissioner within 12 months after the date on which the contravention of the EO Act was alleged to have been committed. Therefore, the Complaint was out of time.
However, s 83(5) of the EO Act allows the Commissioner to accept a complaint which is lodged out of time on good cause being shown. The Commissioner was satisfied that Ms Johnston had shown good cause and accepted the Complaint out of time.
The Commissioner investigated the Complaint and dismissed it as lacking in substance, pursuant to s 89 of the EO Act on 26 June 2018.
On 16 July 2018 Ms Johnston gave the Commissioner a written notice pursuant to s 90 of the EO Act requiring the Commissioner to refer the Complaint to the Tribunal, which the Commissioner did on 19 July 2018.
The Complaint was accepted by the Tribunal and referred to mediation, which did not result in the resolution of the Complaint.
The Complaint was then programmed to a hearing on 6 December 2018, with each party filing with the Tribunal and giving to the other party a statement of issues, facts and contentions, a bundle of documents and witness statements.
Ms Johnston is seeking an order that the respondent pay to her the sum of $40,000 by way of compensation for loss or damage suffered by her by reason of the respondent's conduct.
The hearing
At the commencement of the hearing on 6 December 2018 the following documents were received into evidence:
•applicant's bundle of documents, filed by Ms Johnston (Exhibit A);
•witness statement of Ms Johnston dated 5 December 2018, filed by Ms Johnston (Exhibit B);
•witness statement of Ms O'Donoghue dated 21 November 2018, filed by Ms Johnston (Exhibit C);
•respondent's bundle of documents, filed by the respondent (Exhibit D); and
•witness statement of Ms Bargeus dated 23 November 2018 and attachments, filed by the respondent (Exhibit E).
Ms Johnston, Ms O'Donoghue and Ms Bargeus were each affirmed and questioned regarding their witness statements. Ms Johnston and Ms Bargeus both attended the hearing in person and Ms O'Donoghue attended the hearing by telephone to give her evidence.
At the conclusion of the hearing the parties agreed that it would be appropriate for them to file written closing submissions before the Tribunal made its decision. The Tribunal allowed them until 11 January 2019 to do that and reserved its decision with effect from 14 January 2019.
Ms Johnston's contentions
Ms Johnston contends that:
1)by holding the 3 November 2016 Meeting and raising personal and private allegations against Ms Johnston in front of her colleagues, the respondent treated her less favourably in the circumstances than it would have treated a non-Aboriginal person. This is a claim of discrimination contrary to s 36(1)(d) and s 37(2)(d) of the EO Act (First Discrimination Claim);
2)the respondent's conduct in varying Ms Johnston's employment position to a Section 50(d) Position treated her less favourably than a non-Aboriginal person would have been treated in the circumstances, because a non-Aboriginal person would have been consulted about their position being changed, especially in circumstances where the change was known to be opposed by that person. This is a claim of discrimination contrary to s 36(1)(d) and s 37(2)(a) of the EO Act (Second Discrimination Claim);
3)Ms Bargeus' conduct at the 3 November 2016 Meeting, by threatening to make a complaint about Ms Johnston if she made a complaint about Ms Bargeus, constituted victimisation of Ms Johnston contrary to s 67(1) of the EO Act (Victimisation Claim); and
4)the respondent should pay compensation to Ms Johnston for loss and damage suffered by her because of the unlawful discrimination and victimisation and, in the circumstances, the maximum award of $40,000 is justified (Compensation Claim).
The respondent's contentions
The respondent contends that:
1)regarding the First Discrimination Claim, there is insufficient evidence to support Ms Johnston's contention that she was treated less favourably at the 3 November 2016 Meeting than a person of a different race (that is, a non-Aboriginal person) would have been treated and therefore Ms Johnston has not established that she has been discriminated against contrary to s 36(1) and s 37(2) of the EO Act;
2)regarding the Second Discrimination Claim, the respondent concedes that the designation of Ms Johnston's employment position as a Section 50(d) Position was done on account of Ms Johnston's race and, in these circumstances, constitutes discrimination contrary to s 36(1)(d) and s 37(2)(a) of the EO Act. The respondent accepts that as a result of that discrimination Ms Johnston suffered injured feelings and felt humiliated. However, the respondent takes issue with the detriment alleged by Ms Johnston and the relief claimed by her;
3)regarding the Victimisation Claim, there is no evidence that Ms Johnston intended or proposed to make a complaint under the EO Act at the time of the 3 November 2016 Meeting, nor was Ms Johnston subjected to a detriment, or threatened detriment and therefore Ms Johnston has not established victimisation under s 67(1) of the EO Act; and
4)regarding the Compensation Claim, the Tribunal should limit any relief ordered to an order requiring the respondent to provide Ms Johnston with a written apology. Alternatively, if the Tribunal forms the view that financial compensation is warranted for the injury to feelings and humiliation suffered by Ms Johnston, any such award should be limited in nature.
The relevant provisions of the EO Act
The relevant provisions of the EO Act for the purposes of this proceeding are as follows.
Section 36 of the EO Act sets out the meaning of discrimination on the ground of race for the purposes of the EO Act. Relevantly, s 36(1) provides:
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
Section 37 of the EO Act deals with discrimination against a person in employment on the ground of the person's race. Relevantly, s 37(2) provides:
It is unlawful for an employer to discriminate against an employee on the ground of the race of the employee
(a)in the terms or conditions of employment that 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
(d)by subjecting the employee to any other detriment.
Section 50 of the EO Act sets out a number of exceptions to the provisions in Pt III of the EO Act (which includes s 36 and s 37) regarding discrimination against a person on the ground of race. Section 50 provides, relevantly:
Nothing in this Part applies to or in respect of any work or employment where that work or employment involves any one or more of the following
…
(d)providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race.
Section 50(d) of the EO Act is an exception to the general provisions in the Act prohibiting discrimination on the ground of race if services are being provided by an employer to persons of a particular race (such as Aboriginal persons) for the purpose of promoting the welfare of those persons and those services can most effectively be provided by a person of the same race.
Section 67 of the EO Act deals with victimisation for the purposes of the EO Act. Relevantly, s 67(1) provides:
It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
Section 127 of the EO Act provides that after holding an inquiry the Tribunal may either dismiss a complaint or find the complaint substantiated and make an order pursuant to that section. Section 127 provides:
After holding an inquiry, the Tribunal may
(a)dismiss the complaint that is the subject of the inquiry; or
(b)find the complaint substantiated and do any one or more of the following
(i)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to pay to the complainant damages not exceeding $40 000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct; or
(ii)make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act; or
(iii)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; or
(iv)make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act; or
(v)decline to take any further action in the matter.
Matters to be proved to establish the discrimination claims
The standard of proof to establish the First Discrimination Claim and the Second Discrimination Claim is the balance of probabilities, but having regard to the serious nature and consequences of allegations of discrimination under the EO Act, the approach which the Tribunal takes is that discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361 362; see Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53].
The Tribunal must feel an 'actual persuasion' of the occurrence or existence of the facts alleged by Ms Johnston before those facts can be found: Briginshaw at 361. Furthermore, although it is enough that the affirmative of an allegation is made out to the 'reasonable satisfaction' of the Tribunal, that reasonable satisfaction should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences': Briginshaw at 362.
The onus is on Ms Johnston to prove to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that the respondent has discriminated against her on the ground of race, within the meaning of that expression in s 36(1) of the EO Act.
To establish discrimination under s 36(1)(d) of the EO Act Ms Johnston must prove that because of her race the respondent has treated her less favourably than the respondent treats or would treat a person of a different race in the same circumstances, or in circumstances that are not materially different.
In Edoo at [161] and [162] Deputy President Judge Pritchard (as her Honour then was) and Member McNab stated the following regarding the determination of whether a person has been treated 'less favourably':
To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; (2005) EOC 93405; Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 at [59] [68]. Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
Matters to be proved to establish the Victimisation Claim
The matters which must be proved by Ms Johnston to establish victimisation contrary to s 67 of the EO Act were set out by Deputy President Judge Pritchard (as her Honour then was) at [67] in Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent) as follows:
1)the person victimised suffered, or was threatened with, a detriment;
2)the detriment alleged must be a disadvantage that is substantial and not trivial;
3)the victimiser subjected the person victimised with the detriment, or threatened to do so;
4)a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that:
•the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation;
•there must be an intention to cause detriment; and
•there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation.
General principles regarding the awarding of damages for compensation
The general principles regarding the awarding of damages by way of compensation under s 127(b)(i) of the EO Act were set out by Deputy President Judge Pritchard (as her Honour then was) and Member Mansveld at [161] [164] in Pickett and Chan [2010] WASAT 55 (2009) 68 SR (WA) 165 (Pickett) as follows:
Under s 127(b) of the EO Act, if the Tribunal finds a complaint of discrimination substantiated it may do any one or more of the things set out, including to order a respondent to pay to a complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. Compensable loss includes injury to feelings or humiliation: Airflite Pty Ltd v Goyal [2003] WASCA 45 (Airflite) at [44] (Pullin J), citing Hall v A & A Sheiban Pty Ltd (1989) EOC 92-250 (Hall) at 77,395 and 77,433.
In determining the appropriate quantum of damages it is necessary to bear in mind that the purpose of the legislation is remedial, not punitive: Hall at 77,432. Further, although awards should be restrained, they should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the legislation gives effect: Airflite at [44]; Alexander v Home Office (1988) 1 WLR 968.
In addition, in determining the quantum of damages the character and circumstances of a respondent as well as of an applicant should be taken into account: Airflite at [44] (Pullin J).
Finally, we also take into account the fact that s 127(b)(i) of the EO Act imposes a ceiling of $40,000 on the compensation which may be awarded for any loss or damage suffered as a result of a respondent's conduct. This statutory maximum is to cover all damages, including economic loss plus general damages, and also covers cases of discrimination which may be suffered over a long period of time: Airflite at [50].
Evidence of Ms Johnston
Ms Johnston confirmed the accuracy of her witness statement and was then questioned by counsel for the respondent.
In her witness statement Ms Johnston states that on 3 November 2016 Ms Bargeus called her and two of her Aboriginal colleagues, Ms Bin Salleh and Ms O'Donoghue into her office to discuss some concerns and issues that had been raised by Ms Bargeus.
In response to a question from counsel for the respondent, Ms Johnston acknowledged that at the time of the 3 November 2016 Meeting there were other Aboriginal staff members working in the South Hedland office of the respondent, where the meeting took place, and those other Aboriginal staff members were not called into the meeting because the workplace issues that were discussed during the meeting related just to Ms Johnston, Ms Bin Salleh and Ms O'Donoghue.
In her witness statement, Ms Johnston refers to s 67 of the EO Act and states that Ms Bargeus said during the 3 November 2016 Meeting that if she, Ms Bin Salleh and Ms O'Donoghue wanted to make a formal complaint she was also happy to make a formal complaint against them, which Ms Johnston felt was a direct threat from Ms Bargeus.
In response to a question from counsel for the respondent, Ms Johnston agreed that she did not indicate during the 3 November 2016 Meeting that she would be making an 'Equal Opportunity' complaint and that the first time that Ms Johnston raised the issue of an 'Equal Opportunity' complaint was when she filed the Complaint with the Commissioner, which is the subject of this proceeding.
In her witness statement Ms Johnston states that around August 2017 she noticed on the employee board behind Ms Bargeus' desk that her name had a Section 50(d) Position number attached. She states that she spoke to the administration officer weeks later as she was confused because this had not been raised with her. Ms Johnston then states that the administration officer informed her that she had changed Ms Johnston's position number some time in 2017.
In her witness statement Ms Johnston states that after completing her Diploma for Child Intervention with the respondent she learnt about vicarious trauma and she realised that she suffered from vicarious trauma working in the South Hedland office of the respondent. She further states that she sought medical help as she felt that she was not supported by the respondent and her General Practitioner placed her on anti-depressant medication because she was suffering from anxiety and depression. She then states that when she was dismissed by the respondent in November 2017 she suffered bad anxiety which made her feel nauseous on a daily basis and she was placed on different medication as well as sleeping pills to sleep at night. Ms Johnston then states that she believed that she suffered from vicarious trauma with no support from the respondent up to 18 months prior to being dismissed and she is still currently taking medication to help her to sleep at night.
Evidence of Ms O'Donoghue
Ms O'Donoghue attended the hearing by telephone to give her evidence. She did not have a copy of her witness statement with her, but she stated that she remembered the 3 November 2016 Meeting, which was the subject of her witness statement.
Ms O'Donoghue was questioned by counsel for the respondent regarding the 3 November 2016 Meeting.
Ms O'Donoghue stated that when she arrived at work on the morning of 3 November 2016 she saw a calendar invite to a meeting with Ms Bargeus and she attended the 3 November 2016 meeting together with Ms Johnston and Ms Bin Salleh.
Ms O'Donoghue stated that Ms Bargeus began the discussion by stating that there were some issues that had come to her attention, which involved reports of negative workplace behaviour, and which applied 'across the board' to Ms Johnston, Ms Bin Salleh and Ms O'Donoghue. One of the issues was racist comments being made in the office 'using the black card'.
In her witness statement, Ms O'Donoghue states that she, Ms Johnston and Ms Bin Salleh tried to provide responses to the issues raised by Ms Bargeus, but Ms Bargeus told them that, in her opinion, the information that she had been provided was true and that they all needed to go away and have a think about their behaviours and how they affect the people who worked with them. Ms Bargeus also told them that if this was the last that she heard about those issues, then she would be happy to leave it there, although if they wanted to make something of it then she was happy to make the concerns official and to make this a formal process.
Ms O'Donoghue's witness statement finishes by stating that after the 3 November 2016 Meeting she met with Ms Johnston and Ms Bin Salleh and they had a discussion regarding the 3 November 2016 Meeting. Ms O'Donoghue's statement then lists Ms O'Donoghue's comments and concerns regarding the 3 November 2016 Meeting.
Evidence of Ms Bargeus
Ms Bargeus confirmed the accuracy of her witness statement and was then questioned by Ms Johnston.
Ms Bargeus stated that the circumstances which led to her decision to call the 3 November 2016 Meeting were that:
·the permanent team leader in the Children in Care Team had been on maternity leave and had just returned to work;
·there had been a number of acting team leaders during that time and there was an accumulation of concerns which had been raised regarding the behaviour of Ms Johnston, Ms Bin Salleh and Ms O'Donoghue; and
·all that Ms Bargeus was interested in was trying to get a more harmonious culture and relationship back into the office, as there had been in the past, so that everybody could 'start with a clean slate' as the permanent team leader came back into her role from her maternity leave.
Consideration of the First Discrimination Claim
In the First Discrimination Claim, Ms Johnston contends that she was treated less favourably than her non-Aboriginal work colleagues because she was not afforded a private meeting with Ms Bargeus and instead was called into a group meeting to have her performance and an alleged complaint against her discussed in front of Ms Bin Salleh and Ms O'Donoghue. Ms Johnston contends that a non-Aboriginal person would have been afforded a private meeting in those circumstances.
Ms Johnston must prove to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that she was treated less favourably by the respondent than a person of a different race (that is, a non-Aboriginal person), in the same or not materially different circumstances (a 'comparator'), would have been treated by the respondent.
Ms Johnston has not provided any evidence of an individual nonAboriginal work colleague who could be viewed as a comparator.
As stated in Edoo at [162], it is not necessary to identify an actual person as a comparator.
However, there is nothing in the evidence before the Tribunal which suggests that a hypothetical comparator in the same, or not materially different, circumstances would have been treated in any way different from the way in which Ms Johnston was treated.
Ms Johnston has made an assertion that a non-Aboriginal person would have been afforded a private meeting in those circumstances, without providing any evidence to prove that assertion.
As stated above, the Tribunal must feel an actual persuasion of the existence of facts which prove that assertion and that should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences'.
Ms Johnston has not established discrimination under s 36(1)(d) of the EO Act because she has not proved to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that she was treated less favourably by the respondent than the respondent treats or would treat a person of a different race in the same circumstances which applied to the 3 November 2016 Meeting.
Therefore, the Tribunal has decided to dismiss the First Discrimination Claim.
Consideration of the Second Discrimination Claim
With regard to the Second Discrimination Claim, the Tribunal notes that the respondent concedes that the designation of Ms Johnston's employment position as a Section 50(d) Position constituted discrimination on the grounds of Ms Johnston's race contrary to s 36(1) and s 37(2) of the EO Act.
The Tribunal notes that there is no evidence before it of an actual comparator, but it is clear that any non-Aboriginal staff member of the respondent would constitute a hypothetical comparator.
The Tribunal is satisfied, in accordance with the Briginshaw approach outlined above, that the respondent has discriminated against Ms Johnston on the ground of her race within the meaning of that expression in s 36(1) of the EO Act because she was treated less favourably than a non-Aboriginal person would have been treated by the change of the designation of her employment position to a Section 50(d) Position.
Consideration of the Victimisation Claim
In the Victimisation Claim Ms Johnston contends that Ms Bargeus threatening to make a complaint about Ms Johnston during the 3 November 2016 Meeting, if Ms Johnston made a complaint about her, constituted victimisation contrary to s 67(1) of the EO Act.
As stated in Laurent at [67] to establish victimisation under s 67(1) of the EO Act, in addition to the issue of detriment, it must be established that the dominant or substantial reason for the alleged victimiser's conduct (in this case, the conduct of Ms Bargeus as the District Director of the respondent) was that the alleged person victimised (in this case, Ms Johnston):
•had made, or proposed to make, a complaint under the EO Act (the ground specified in s 67(1)(a) of the EO Act); or
•had brought, or proposed to bring, proceedings against the respondent or any other person (such as Ms Bargeus) under the EO Act (the ground specified in s 67(1)(b) of the EO Act); or
•had taken, or proposed to take, any of the actions which constitute grounds for victimisation under s 67(1)(c), (d), (e) or (f) of the EO Act.
In the Victimisation Claim Ms Johnston does not allege any of the matters specified in s 67(1)(c), (d), (e) or (f) of the EO Act and she relies on the grounds set out in s 67(1)(a) or (b) of the EO Act.
In her evidence during the hearing, Ms Johnston agreed that she did not indicate during the 3 November 2016 Meeting that she intended to make a complaint or bring proceedings under the EO Act. Therefore, Ms Johnston has not established the grounds set out in s 67(1)(a) or (b) of the EO Act.
Accordingly, the Victimisation Claim is not proved and the Tribunal has decided to dismiss it.
Consideration of the Compensation Claim
As a result of the Tribunal's decision to dismiss the First Discrimination Claim and the Victimisation Claim, the Compensation Claim is limited to the Second Discrimination Claim.
The respondent accepts that Ms Johnston suffered injury to her feelings and felt humiliated as a result of the circumstances of the Second Discrimination Claim.
As stated in Pickett at [161], compensable loss for the purposes of s 127(b)(i) of the EO Act includes injury to feelings or humiliation.
In Pickett at [165] [168], the Tribunal referred to a number of cases in which compensation was awarded to Aboriginal persons for hurt and humiliation suffered as a result of racial discrimination. The amounts awarded ranged from $750 to $18,000.
At [186] of Pickett, the Tribunal stated that racial discrimination is a serious matter and an award of damages under s 127(b) of the EO Act should take that into account. Taking into account the limited evidence concerning Mrs Pickett's damages claim and accepting that the respondent in that case, Ms Chan had not engaged in racially discriminatory conduct in the past, the Tribunal decided that an award at the lower end of the scale was warranted. The Tribunal, therefore, awarded compensation of $2,000 to Mrs Pickett, who dealt directly with Ms Chan and experienced racial discrimination first hand and compensation of $1,000 to Mrs Pickett's son, who did not speak with Ms Chan and did not experience, directly, discrimination by Ms Chan.
The Tribunal considers that, although the facts and circumstances of the discrimination are very different, the decision in Pickett appears to bear some similarities to the circumstances of the Second Discrimination Claim in this proceeding in terms of the impact of the discrimination upon Ms Johnston and that the circumstances of the discrimination were confined to one action.
The Tribunal has decided that an order that the respondent make a written apology to Ms Johnston is not an appropriate nor sufficient form of relief to award to Ms Johnston in respect of the discrimination which is the subject of the Second Discrimination Claim.
The Tribunal has decided that an award of $2,000 is appropriate by way of compensation to Ms Johnston for the hurt and humiliation suffered by her by reason of the conduct of the respondent in changing the designation of Ms Johnston's employment position with the respondent to a Section 50(d) Position.
Orders
The Tribunal will make the following orders:
1.The applicant's complaint of discrimination by the conduct of the respondent in changing the designation of the applicant's employment position with the respondent to a 'section 50(d) position' contrary to s 36(1) and s 37(2) of the Equal Opportunity Act 1984 (WA) is substantiated.
2.By 10 May 2019 the respondent must pay the amount of $2,000 to the applicant as damages by way of compensation for the loss or damage suffered by the applicant by reason of the conduct referred to in order 1 above.
3.The remainder of the applicant's complaint is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
11 APRIL 2019
0
7
1