Jungstedt v Yoram-Gross Em.Tv Pty Limited

[2001] NSWADT 131

CITATION:	Jungstedt -v- Yoram-Gross EM.TV Pty Limited [2001] NSWADT 131
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Vicente Jungstedt RESPONDENT Yoram-Gross-EM.TV Pty Limited
FILE NUMBER:	991090
HEARING DATES:	29/08/2000, 30/08/2001, 31/08/2001, 19/02/2001, 20/02/2001
SUBMISSIONS CLOSED:	02/27/2001
DATE OF DECISION:	08/13/2001
BEFORE:	Hennessy N (Deputy President); Luger M - Member; Edwards K - Member
APPLICATION:	Homosexual Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5 Adams -v- University of Western Sydney [2001] NSWADT 19 Hudson -v- Strathfield Golf Club [2000] NSWADT 88
REPRESENTATION:	APPLICANT M Bateman, barrister RESPONDENT K Nomchong, barrister
ORDERS:	The application is dismissed.

1 Mr Luger, one of the non-judicial members of the Tribunal in this case, passed away before these reasons were published. A draft of the decision, in substantially the same form as the published reasons, was given to him prior to his death. He agreed with the reasoning and conclusions in that draft.

2 On 19 August 1999 the President of the Anti-Discrimination Board (ADB) referred to the Tribunal a complaint of homosexuality discrimination in employment. The President’s report refers to complaints of homosexuality discrimination and victimisation. When questioned by the Tribunal, Ms Bateman, representing Mr Jungstedt, indicated that the complaint of victimisation was being withdrawn. It is formally dismissed.

3 Mr Jungstedt, who is a homosexual person, alleges that his supervisor, Mr Qui, started to treat him less favourably than he would have treated a person who he did not think was a homosexual person, after he found out that Mr Jungstedt was gay. Mr Jungstedt says that on or about 19 December 1997, after he had been working at Yoram-Gross EM.TV Pty Limited (Yoram-Gross) for about six weeks, Mr Qui went to Mr Jungstedt’s home to collect some art work and saw his same sex partner lying in bed. Before this happened Mr Qui had been giving Mr Jungstedt work to complete including background layouts based on key designs and some clean-up work related to the “Skippy” production. That work was accepted by Mr Qui and the designs proceeded to the next stage of production. Following his visit to Mr Jungstedt’s home, Mr Jungstedt alleges that Mr Qui’s behaviour changed in relation to Mr Jungstedt’s work because he knew Mr Jungstedt was a homosexual person. Mr Jungstedt said that Mr Qui gave him mostly clean up work and some background drawing for the “Flipper” production. A considerable amount of Mr Jungstedt’s work was rejected by Mr Qui and did not proceed to the next stage of production. In addition, Mr Qui failed to adequately explain to Mr Jungstedt what he required and failed to mentor him as he had previously done.

4 The complainant’s case is that Yoram-Gross, through its employee Mr Qui, directly discriminated against Mr Jungstedt on the ground of homosexuality. The complainant says that the Tribunal can draw an inference, based on circumstantial evidence, that the change in Mr Qui’s behaviour towards Mr Jungstedt coincided with him finding out that he was a homosexual person.

5 The complainant alleges that these circumstances amount to a breach of s 49ZH(2)(a) of the Anti-Discrimination Act 1977 (AD Act). That provision relates to discrimination by an employer on the ground of homosexuality in the terms or conditions of employment that an employer affords an employee.

6 The complainant also alleges that under s 53 of the AD Act, Yoram-Gross is vicariously liable for the discriminatory acts of its employee, Mr Qui.

7 The respondent, Yoram-Gross, says that Mr Qui knew Mr Jungstedt was gay before he visited his home in December 1997. Even if that is not accepted, Mr Qui did not treat him less favourably than he would have treated a person who he did not think was a homosexual person. According to Yoram-Gross, it was Mr Jungstedt’s inability to perform the work to the required standard, his failure to accept criticism and his inexperience as a background designer which led to the rejection of his work.

Analysis of legislation and issues

8 The substantive provision relevant to this complaint is s 49ZH(2) of the AD Act which makes it unlawful for an employer to discriminate against an employee on the ground of homosexuality. The relevant parts of that section state that:
(2) It is unlawful for an employer to discriminate against an employee on the ground of homosexuality:
(a) in the terms or conditions of employment which the employer affords the employee,
(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.
9 The treatment which Mr Jungstedt complains of would fall within this provision because, at the very least, it relates to the terms and conditions of his employment. The question which remains is whether that treatment was discriminatory.

10 The definition of discrimination on the ground of homosexuality is in s 49ZG of the AD Act. That section states that:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality 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 who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, 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.
(2) For the purposes of subsection (1) (a), something is done on the ground of person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.

11 Apart from the issue of remedies, the questions which the Tribunal must ask itself are:

· Did Mr Qui treat Mr Jungstedt less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who he did not think was a homosexual person?
· If so, was the differential treatment on the ground of Mr Jungstedt’s homosexuality?
12 The Appeal Panel of this Tribunal has given these questions the short hand labels of “differential treatment” and “causation” respectively . (See Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5 at [45].) The “differential treatment” test is a question of fact which requires a comparison of the treatment afforded to the complainant with the treatment afforded (or that would have been afforded) to an actual or hypothetical person. (See discussion of this issue in Adams -v- University of Western Sydney [2001] NSWADT 19 at [41]-[44].)

13 In this case, the comparison the complainant asked the Tribunal to make was between Mr Qui’s treatment of Mr Jungstedt before 19 December 1997 (when he allegedly did not think he was a homosexual person) and Mr Qui’s treatment of Mr Jungstedt after 19 December 1997 (when he allegedly did think Mr Jungstedt was a homosexual person). Neither party submitted that the comparator could not be the complainant.

14 The differential treatment test requires that Mr Qui treats the aggrieved person (Mr Jungstedt) less favourably than in the same circumstances, or in circumstances which are not materially different, Mr Qui treats or would treat a person who he or she did not think was a homosexual person.

15 It is arguable, given the use of the word “aggrieved person” to refer to the complainant and “person” to refer to the comparator, that the legislature intended that the aggrieved person and the comparator would be different people. It is also arguable that the word “person” means any person including the complainant.

16 One of the purposes of s 49ZG is to enable a comparison to be made between the treatment of a person (whether actual or hypothetical) that the perpetrator did not think was a homosexual person and the treatment of the complainant at a time when the perpetrator did think the complainant was a homosexual person. Such a comparison is available when the perpetrator does not think that a person is gay, but finds out at some later time that he or she is gay. Although we were unable to find any authority on this issue, our view is that a comparison can justifiably be made between the treatment of the aggrieved person during each of those periods, as long as the circumstances are the same or not materially different.

17 If the circumstances are the same, or not materially different, the final question which must be addressed in relation to the differential treatment test is whether the treatment of Mr Jungstedt by Mr Qui was “less favourable” after 19 December than it was before that date.

18 The questions which the Tribunal must ask itself in this case, in relation to the “differential treatment” test can be summarised as follows:
1. During what period or periods (if any) did Mr Qui not think that Mr Jungstedt was a homosexual person?

2. During what period or periods did Mr Qui think that Mr Jungstedt was a homosexual person?
3. If there are periods when Mr Qui did think Mr Jungstedt was a homosexual person and periods when Mr Qui did not think that Mr Jungstedt was a homosexual person, were the circumstances during these periods the same or not materially different?
4. If the circumstances during the relevant periods were the same or not materially different, did Mr Qui treat Mr Jungstedt less favourably during the periods when he did think he was a homosexual person than during the periods when he did not think he was a homosexual person?
19 We have concluded that the requirement for “differential treatment” has not been satisfied in this case and therefore there is no need to consider the “causation” test.

Evidence and findings

20 During what period or periods (if any) did Mr Qui not think that Mr Jungstedt was a homosexual person? It is not in dispute that Mr Qui knew Mr Jungstedt from a previous workplace but they had only met once or twice. Mr Qui said that although Mr Jungstedt had never told him directly that he was gay, he “formed the belief” that he was gay because “things get around in the animation industry.” He said in oral evidence, “I just feel he is that sort of person, but I can’t remember who told me.” Mr Qui gave evidence of conversations that he heard while working at Disney and said those conversations had led him to believe that Mr Jungstedt was gay even before he started working at Yoram-Gross. Mr Qui also said that he overheard conversations in the tea room at Yoram-Gross about Mr Jungstedt being gay but he could not remember who was talking or the content of those conversations. In cross examination, the following exchange took place between Ms Bateman and Mr Qui:
Ms Bateman: You went to Mr Jungstedt’s apartment to pick up the freelance work and you already had a feeling that Mr Jungstedt was gay, is that correct?
Mr Qui: Yes
Ms Bateman: You didn’t know for sure, but you had a feeling?
Mr Qui: Yes
Ms Bateman: When was the first time, between arriving at Mr Jungstedt’s apartment in December 1997 and today that you knew he was gay?
Mr Qui: I already said I knew he was that sort of person before the apartment.

21 Evidence about what happened in Mr Jungstedt’s apartment on 19 December is also relevant to whether or not Mr Qui thought Mr Jungstedt was gay prior to that time.

22 The day before Mr Qui’s visit to his apartment in December 1997, Mr Jungstedt told his partner, Karl Kilpatrick, that Mr Qui was coming to collect some art work the next morning. He said to Mr Kilpatrick words to the effect of “I don’t know if he knows that I am gay and because I am new at Yoram-Gross I don’t want to cause any problems for myself in the event that he reacts badly if he knows that I am gay. So, when he comes around tomorrow, if you wouldn’t mind staying in the bedroom I would appreciate it.” Mr Kilpatrick agreed.

23 Mr Jungstedt gave evidence that Mr Qui came to the front door of his unit the following morning. Mr Jungstedt said he had some art work in the lounge room and when Mr Qui expressed an interest in seeing it, he showed it to him. Mr Jungstedt then said that Mr Qui walked down the corridor towards the bedroom where his partner was lying on the bed. Mr Jungstedt said “Don’t go in there. My partner is in there.” Mr Qui opened the door. Mr Jungstedt’s evidence was that after Mr Qui opened the door and saw Mr Kilpatrick his “expression changed from happy, friendly and talkative, to quiet and expressionless.”

24 Mr Kilpatrick gave evidence that he heard Mr Qui arrive and heard Mr Jungstedt say “My partner’s in there.” He then heard the door to the bedroom opening. He looked up to see a middle aged man staring at him. Mr Kilpatrick said “he looked flustered and quickly walked out without saying anything.”

25 Mr Qui gave evidence that Mr Jungstedt showed him some art work and then showed him around his apartment. He said he “walked down a corridor towards a door which was partly open. As I approached the door I could see a person lying on the bed. I did not further open the door or enter the bedroom but turned around and returned to Vincent.” Mr Jungstedt then said “That’s my friend.” Mr Qui said he did not identify the sex of the person lying on the bed and was merely being polite when Mr Jungstedt invited him to look around his apartment.

26 Mr Jungstedt said that he went to work on the same day and spoke to a work colleague, Nicole Papax. He said that he told her that Mr Qui had seen his partner in their bedroom and said “I hope that he doesn’t have a problem with me being gay.”

27 The unsigned and unsworn statement of Ms Papax was admitted into evidence but in view of the fact that Ms Papax did not sign the statement or attend the Tribunal for the purpose of cross examination, we do not propose to give any weight to that statement.

Findings

28 If the treatment of Mr Jungstedt by Mr Qui before and after 19 December 1997 is the relevant comparison, the onus is on the complainant to prove, on the balance of probabilities, that Mr Qui did not think Mr Jungstedt was gay prior to the visit in December 1997. There is no dispute between the parties that Mr Qui did think Mr Jungstedt was gay after that visit.

29 Mr Qui gave written evidence that he “knew” (and in oral evidence that he “felt”) that Mr Jungstedt was gay before he went to his apartment. While he could not remember exactly how or when he found out, he had worked with Mr Jungstedt previously and had overheard various conversations. Mr Jungstedt’s evidence is that before Mr Qui visited his apartment in December, he did not know whether Mr Qui knew he was gay.

30 Mr Qui’s evidence was direct and uncontradicted. Ms Bateman submitted that Mr Qui’s claims were unsubstantiated. We accept that they were not corroborated by any other witness, but we do not give them any less weight because Mr Qui was unable to recall the precise circumstances in which he says he found out that Mr Jungstedt was gay. Mr Qui’s assertions were not weakened despite lengthy cross examination.

31 There is conflicting evidence about what happened when Mr Qui visited the apartment. The complainant’s version is that Mr Qui walked down the corridor to the bedroom, opened the door (despite being told by Mr Jungstedt not to go in), saw a man in the bed and looked flustered (or at least his expression changed). The respondent’s version is that Mr Qui was near the door which was slightly open, looked in momentarily and saw a person covered by a sheet on the bed.

32 We accept the evidence of Mr Kilpatrick who gave straight forward evidence which was corroborated in most respects by Mr Jungstedt. We find that Mr Qui was in the vicinity of the bedroom door when Mr Jungstedt said “My partner’s in there.” Mr Qui then opened the door slightly and looked in to see Mr Kilpatrick lying on the bed. We do not accept that Mr Jungstedt said to Mr Qui “Don’t go in there” as neither Mr Kilpatrick nor Mr Qui mention hearing this comment. We find that Mr Qui would have realised that there was a man in the bed and was embarrassed by his discovery. In making these finding we are not suggesting that Mr Qui was deliberately not telling the truth about what happened. It may be that his recollection of the events was not as strong as Mr Kilpatrick’s or Mr Jungstedt’s recollection.

33 These findings do not change our view that Mr Qui felt that Mr Jungstedt was a homosexual person prior to the visit. Even if it is accepted that he saw a man in the bedroom and his expression changed on seeing him, those facts do not give rise to an inference (given Mr Qui’s direct evidence to the contrary) that Mr Qui realised for the first time on 19 December 1997 that Mr Jungstedt was gay.

34 The next question is whether this finding means that Mr Qui did or did not think Mr Jungstedt was a homosexual person prior to the December visit. The word “think” in s 49ZG imposes a subjective test about the alleged perpetrator’s state of mind at a particular time. Such a test is necessary because s 49ZF defines “a person’s homosexuality” as follows:
A reference in this Part to a person's homosexuality includes a reference to the person's being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

35 This interpretation ensures that people who are not homosexual can still complain under the AD Act if they are discriminated against because someone “thinks” they are a homosexual person. A similar test is used in relation to the definition of transgender discrimination in s 38B of the AD Act. The definitions of race, sex, marital status, disability and age discrimination impose an objective comparator. These comparators are: “a person of a different race” (s 7); “a person of the opposite sex (s 24); “a person of a different marital status” (s 39); “a person who does not have that disability” (s 49B); and a person who is not of that age or age group” (s 49ZYA).

36 Given that a person can discriminate against another person on the ground of homosexuality as long as the alleged perpetrator thinks the person is homosexual, the comparator is a person who the alleged perpetrator does “not think” is a homosexual person.

37 The word “think” must be given its ordinary and natural meaning. The Macquarie Dictionary, (The Macquarie Library, 3rd edition, 1997) defines “think” in several ways, but the definition which is most appropriate, taking into account the context in which the word is used in s 49ZG, is “to hold as an opinion, believe; suppose: they thought that the earth was flat.” Consequently a person may “think” something regardless of whether it is objectively true.

38 In context, the words “did not think was a homosexual person” in s 49ZG mean that the alleged perpetrator did not have a subjective opinion or belief that the person was a homosexual person. Because Mr Qui’s evidence was that he “felt” Mr Jungstedt was gay, it is arguable that he had an opinion that he might have been gay, but not that he was gay. We do not interpret the evidence in that way. In our view, despite Mr Qui's answers under cross examination (see paragraph 20 above) Mr Qui’s evidence in total satisfies us that prior to 19 December 1997 he had a belief or opinion that Mr Jungstedt was gay.

39 Given all the evidence and this analysis, we are not satisfied, on the balance of probabilities, that Mr Qui did “not think” Mr Jungstedt was a homosexual person prior to 19 December 1997. He did think that Mr Jungstedt was a homosexual person at that time. It is irrelevant that Mr Qui later found out for sure that Mr Jungstedt is a homosexual person. Consequently, the answer to the first question posed in paragraph 18 above is that there were no periods during which Mr Qui not think that Mr Jungstedt was a homosexual person.

40 This conclusion means that, for the purposes of the “differential treatment” test, the treatment afforded to the complainant prior to December 1997 cannot be compared with the treatment afforded to him after that date. The complainant’s case was based on an alleged change in the way Mr Qui treated Mr Jungstedt after 19 December 1997 and the reason for that alleged change in treatment. The complainant did not lead evidence or make submissions about any other actual or hypothetical comparator. Given our findings, the complainant has not satisfied the “differential treatment” test and the complaint must be dismissed.

REASONS FOR DECISION BY KELLIE EDWARDS

41 I agree as to the outcome of this case. However, I dissent with regard to whether Mr Qui thought Mr Jungstedt was gay on or before 17 December 1997, and also with regard to the period of time which must be considered in order to ensure that circumstances are the same or not materially different.

42 Certainly, the onus is on the applicant to prove, on the balance of probabilities, that Mr Qui thought Mr Jungstedt was gay. If Mr Qui did not think Mr Jungstedt was gay there can be no breach of the Act, as issues of differential treatment and causation become irrelevant. However, there is no dispute between the parties that Mr Qui was aware that Mr Jungstedt is gay. Thus the emphasis on when this knowledge may have crystallised for Mr Qui became a key issue.

43 The following evidence was produced under cross-examination:

Ms Bateman: You went to Mr Jungstedt's apartment to pick up the freelance work and you already had a feeling that Mr Jungstedt was gay, is that correct?
Mr Qui: Yes.
Ms Bateman: You didn't know for sure, but you had a feeling?
Mr Qui: Yes.
Ms Bateman: When was the first time, between arriving at Mr Jungstedt's apartment in December 1997 and today that you knew he was gay?
Mr Qui: I already said I knew he was that sort of person before the apartment.

44 Mr Qui was consistent in his assertion that he knew Mr Jungstedt was gay, before the incident of 19 December 2001. However, as the above evidence demonstrates, the highest he could put this was that he had a feeling. He could not state with any certainty when he first knew Mr Jungstedt was gay, or in what circumstances he may have found out. His assertions with regard to his knowledge were vague and related to having worked freelance at Disney (where Mr Jungstedt worked prior to Yoram Gross), as well as non-specific conversations in the tea-room between 15 to 20 unidentified people, with Mr Jungstedt, about shopping. Both Mr Qui and Mr Jungstedt gave evidence that at no time had Mr Jungstedt told Mr Qui that he was gay.

45 Mr Qui may indeed have had a feeling that Mr Jungstedt was gay, but there is a qualitative difference between having a feeling that someone is gay and being possessed of a perceived confirmation of that feeling that a particular person is gay. That is, though the legislation does not require the applicant to in fact be gay, it does require the alleged perpetrator to think, or have formed the opinion, that the applicant is in fact gay.

46 On this basis I find that Mr Qui's own evidence regarding the basis of his knowledge that Mr Jungstedt was gay before 19 December 1997 can only give rise to a mere supposition, a feeling, that Mr Jungstedt was gay. Thus the next question of fact becomes when did this feeling crystallise for Mr Qui so that he formed the opinion that Mr Jungstedt was in fact gay.

47 It was Mr Jungstedt's evidence that he preferred his partner to stay in the bedroom during Mr Qui's visit to the apartment on 19 December 1997. This was corroborated by his partner, Mr Kilpatrick. Mr Jungstedt said that when he saw Mr Qui go down the hallway towards the door to the bedroom he said words to the effect, "Don't go there. My partner is there." This is not inconsistent with Mr Kilpatrick hearing Mr Jungstedt say, "My partner's in here". Indeed, that Mr Kilpatrick only heard the last part of what Mr Jungstedt said, is consistent with his own evidence that the bedroom door was closed, if not fully shut until he heard the door opening and saw Mr Qui. I prefer the evidence of Mr Jungstedt and Mr Kilpatrick on these points.

48 Mr Qui stated at the hearing that the person he saw lying on the bed was covered by a sheet. This was the first time such evidence was lead. Whereas, it was Mr Kilpatrick's evidence that,

It was a hot summer's night and when Vincente got up early, I remained in bed half-asleep. I lay on top of the bed in my underwear and turned the television on softly. The bedroom door was closed, if not fully shut.

49 Again, this was corroborated by Mr Jungstedt's evidence that when he left the bedroom Mr Kilpatrick was lying propped up on pillows, on the bed in his underpants.

50 In this context, I prefer the applicant's submission that Mr Qui formed the opinion that the applicant was in fact gay as a result of events of 19 December 2001.

51 The next question relates to differential treatment. The appropriate comparator was specified by the applicant as being the applicant before Mr Qui thought he was homosexual, and the applicant after that time (i.e. 19 December 2001). It was the applicant's submission that prior to the 19 December 2001 Mr Jungstedt's work was accepted by Mr Qui and that work then proceeded to the next stage of production. Whereas, after the 17 December 2001, the applicant was given clean-up work, his work was not accepted and so did not proceed to the next stage of production. This method of specifying the comparator makes an assumption that the circumstances of Mr Jungstedt's employment before the 17 December 1997 were not materially different from those after that time. This approach must be incorrect as circumstances will, in most cases, be materially different depending upon when they are located temporally. The most obvious case being where a person starts in a job and is treated differently from the beginning by someone who thinks they are homosexual.

52 No evidence was lead by either party with regard to an actual comparator, that is, someone not gay but in the position of Mr Jungstedt. In the absence of such evidence, I must adopt a notional or hypothetical employee [as per Hudson -v- Strathfield Golf Club [2000] ADT]. Thus the comparator in this case, is a person who is not homosexual, with the skills and attributes of Mr Jungstedt in the position of starting a new production, which marked a departure in style and as such could be characterised as requiring a more intense period of design, in order to develop an identifiable style for the new production.

53 Evidence was lead by the applicant supporting, a change in the type of work Mr Jungstedt was required to carry out at Mr Qui's instruction. There was evidence that Mr Qui ceased to approve Mr Jungstedt's work, preventing Mr Jungstedt's work from progressing to the next stage of production. The question is, whether a notional employee who was not gay would have been treated in the same way. The fact that a lot of Mr Jungstedt's work was rejected by Mr Qui and thus did not proceed to the next stage of production, is supported by Mr Qui's statement. Further, Mr Qui did give the applicant different work. Some of this work was of a much lower skill requirement, being clean-up work, rather than work related to that of a background designer. Counsel for the applicant argued that, given there were employees specifically employed to undertake clean-up work these actions indicated that Mr Qui was treating Mr Jungstedt differently from other background designers. Counsel for the applicant argued that given Rodney Whitham's evidence that "it was possible and it can happen" (p 107) that a background designer is given clean-up work, there was an inference that could be drawn that it was less suitable for a person employed as a background designed to be cleaning up other background designers' work. However, I accept the respondent's evidence that a background designer may be required to undertake some clean-up work.

54 Counsel for the respondent asserted that the change in treatment was consistent with a change in the productions that the applicant was involved in, from Skippy to Flipper. It was argued by the respondent that the applicant did not have the skills to produce the work required consistent with the change in production style. Both the applicant and the respondent agreed that the style of the new production, which began on resumption of work after the Christmas/New Year break in 1998, was less sketchy, traditional, romantic and akin to the Disney style. In support of the respondent's assertion that Mr Jungstedt was unable to produce work in line with the style of the new production, the respondent introduced examples of Mr Jungstedt's work into evidence. Counsel for the respondent argued that these drawings illustrated Mr Jungstedt's incapacities as a background designer, in relation to the new production style required for Flipper. Specifically, it was argued that the backgrounds did not demonstrate the required dynamic and/or correct perspective which was required to provide an appropriate space in which the characters could carry out the action required by the script. As Mr Linkov stated:

He draws quite well. . .[but it is]. . . another matter if you are drawing to serve the purpose of background design layout. Staging is the ability to predict the action and give enough room for the characters, make them comfortable standing on the ground, following the rules of perspective.

55 Witnesses for the respondent all agreed that Mr Jungstedt's drawing skills were of a high standard. However, I prefer the respondent's evidence with regard to the reason for Mr Qui's rejection of his background designs. There was a standard that included, but was not limited to drawing skills, as described by Mr Linkov above. Mr Jungstedt's background designs did not meet this standard, and so they were not approved and did not progress to the next stage of production. I make this finding despite the introduction of Exhibit T into evidence. While the drawings produced by the respondent were clearly executed at the time of the events in question, it is unclear exactly when exhibit T was executed. For this reason, little weight may be given to evidence proffered in this regard and evidence in relation to the other drawings is to be preferred. The applicant also argued that there was a settling in period in relation to starting a new production with a different style. Mr Linkov agreed that this period would be around three weeks. This period still does not account for deficiencies in Mr Jungstedt's work as assessed by Mr Qui, given that a significantly greater amount of time had elapsed before Mr Jungstedt was transferred from Flipper to Dumb Bunnies. For these reasons, on balance of probabilities I find that Mr Qui would not have treated another person with Mr Jungstedt's skills, who was not gay, any differently than the way in which he treated Mr Jungstedt. For this reason the applicant's case fails.

In Summary
56 I disagree with the Tribunal's conclusion in paragraph 16 of the decision that the relevant circumstances to be compared are Mr Qui's treatment of Mr Jungstedt before he found out Mr Jungstedt was gay and after he found out Mr Jungstedt was gay. The appropriate comparator is a hypothetical comparator in the same circumstances, or circumstances not material different to those of Mr Jungstedt. The circumstances to be taken into account are those in evidence from the time at which the respondent thinks the applicant is gay, unless the circumstances before and after are in fact the same. Given Mr Jungstedt cannot be the comparator, and no other comparator was suggested, I adopt a hypothetical comparator. On the basis of this comparison, I find that Mr Jungstedt was not treated less favourably than someone whom Mr Qui did not think was gay.

Orders

57 The application is dismissed.