Kapoor v Monash University

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4034 of 1999

UMA KAPOOR
	Appellant
v.
MONASH UNIVERSITY & ANOR	Respondents

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JUDGES:	BROOKING, ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	28 and 29 November 2001
DATE OF JUDGMENT:	21 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 247	1^st Revision – 21 December 2001

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DISCRIMINATION – Equal opportunity – Direct discrimination in employment context by reason of a characteristic which is race or religion based – True reason for non-renewal of employment contract was employee’s work capacity, but not a raced based characteristic – Whether the discriminator’s reason for impugned conduct was race or religion related – Whether personality trait could be a characteristic – Whether sufficient evidence available for remission back to the Tribunal for re-hearing – Equal Opportunity Act 1984, s.17(4)(a); Equal Opportunity Act 1995 s.7(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B. Zichy-Woinarski, Q.C. and Ms M. Young	Erskine Rodan & Associates
For the Respondents	Ms D.S. Mortimer	Allens Arthur Robinson

BROOKING, J.A.:

I agree with Chernov, J.A.

ORMISTON, J.A.:

On this appeal I have had the advantage of reading the judgment of Chernov, J.A. in draft form. For the reasons he advances I consider that the appeal should be dismissed.

CHERNOV, J.A.:

The proceeding

This appeal arises out of a complaint made by the appellant, Dr. Kapoor, to the Equal Opportunity Commission in July 1996 that she was subjected to unlawful discrimination contrary to the Equal Opportunity Act 1984 (“the 1984 Act”) and the Equal Opportunity Act 1995 (“the 1995 Act”) on the grounds of, inter alia, race, religion and status as a parent by her former employer, Monash University (the first respondent) and two of its employees, namely, her former Director, Helen Curzon-Siggers, who is the second respondent, and Professor Campbell, who was the third respondent in the proceeding before the Victorian Civil and Administrative Tribunal (“Tribunal”) to which I will refer later. The principal complaint was that her contract of employment with the first respondent was not renewed due to unlawful discriminatory conduct of the respondents contrary to s.17(4)(a) of the 1984 Act and s.7(2)(b) of the 1995 Act. On 6 September 1996, the Commission declined to entertain her complaint on the ground that it lacked substance. In accordance with the appellant’s request of 6 October 1996, the matter was referred to the Tribunal which heard the complaint during eight sitting days in October and November 1998. The parts of the complaint that were based on the grounds of personal association and marital status were abandoned during the Tribunal hearing. On 11 December 1998 the Tribunal dismissed the complaint against Professor Campbell, but found that the first and second respondents unlawfully discriminated against the appellant in

refusing, in early 1996, to renew her contract of employment. I will deal later with the comprehensive reasons of the Tribunal but, for the present, it is sufficient to note that it awarded her compensation for loss of income in the sum of $84,984.44, general damages in the sum of $10,000 and aggravated damages in the sum of $7,000. Further orders were made directing that certain documents be removed from the appellant’s personnel file and that the first and second respondents provide a written apology to the appellant.

By notice of appeal dated 9 April 1999, the first and second respondents appealed to the Trial Division of the Supreme Court against the decision of the Tribunal in so far as it related to them.[1] The appeal was heard by a judge of the Supreme Court on 26 October 1999. His Honour delivered judgment on 9 December 1999, allowing the appeal only on the ground that, given certain findings that were made by the Tribunal, it erred in concluding that, in refusing to renew the appellant’s contract of employment, the respondents had unlawfully discriminated against her (ground (g)). His Honour decided not to remit the matter to the Tribunal and, on 14 December 1999, set aside its decision and made consequential orders. The appellant lodged a notice of appeal on or about 20 December 1999 against his Honour’s decision and the respondents filed a notice of contention.
[1]Although for obvious reasons Professor Campbell is not a respondent to this appeal, where it is relevant to do so in these reasons, I shall continue to treat her as one of the parties.

I now turn to summarise the facts that were found by the Tribunal or were accepted by the respondents before it.

The appellant’s cultural circumstances

The appellant was born in India and belongs to the Indian race. She is an adherent of the Hindu religion and, by virtue of her birth, a Brahmin by caste which is the highest caste in the Indian society. The Tribunal accepted that, generally, particular social and cultural characteristics attach to members of different castes of the Hindu religion. They included a mode of dress, eating habits, consumption or non-consumption of certain foods or alcohol and, relevantly for present purposes, reserved social behaviour. Hence, in keeping with the traditions of the Brahmin caste, the appellant wore traditional sari dress, did not drink alcohol, was a vegetarian, was socially reserved and believed herself to be different from others of lower castes, although not superior to them, because of her racial and religious background.

The respondents before the Tribunal accepted that the appellant was a person who had the status or attribute of “race” for the purposes of the 1984 Act and the 1995 Act respectively and that her Hindu religion brought her within the meaning of “private life” in the 1984 Act and “religious belief or activity” for the purposes of the 1995 Act. The Tribunal considered that the social consequences of the appellant having been born into the Brahmin caste were incapable of being separated out from the religious aspect of Hinduism and that, therefore, the “characteristics of personality which the [appellant] has, should properly be considered to attach to her caste, and therefore to her religion which is determined because of her race”.

Relevantly, the Tribunal was satisfied that the appellant was socially reserved and that this was a “characteristic” for the purposes of s.17(4)(a) of the 1984 Act which appertains generally to Indian Hindus of Brahmin caste. It is difficult, however, to determine what the Tribunal meant by such a finding. It did not say, for example, what features of the appellant’s behaviour showed that she was “socially reserved”, or how her “reserved” behaviour compared with the reserved behaviour of ordinary members of the community. The Tribunal also did not make any finding as to how the appellant’s reserved disposition manifested itself in her dealings with the students. One thing is clear, however, and that is that the Tribunal did not regard the appellant as being so socially reserved as not to be able adequately to interact with the students outside classes. Although, for reasons which I give later, it is not necessary to determine for the purposes of the appeal whether the appellant’s reserved disposition was a “characteristic” for the purposes of the legislation, I will come back to the matter briefly when I consider the respondents’ notice of contention.

The appellant and the MOSA program

The appellant is an academic with a PhD obtained from the first respondent. She has a particular interest in English literature and wide experience in teaching English as a second language. On the recommendation of the second respondent, the appellant was appointed by the first respondent for a period of three years from 1 January 1993 to conduct the English course element of the Monash Orientation Scheme for Aborigines (“MOSA programme”). Thus, unless she was re-appointed, her employment by the first respondent was due to expire at the end of 1995. The MOSA scheme was organised by the first respondent to facilitate the entry of Koori students into first year university courses, to affirm their cultural identity, and to help them reach their academic potential. Students who have completed secondary schooling, those who have reached VCE standard, and mature-age Koori students, could apply for entry to the MOSA program which, as I have said, provided a tailored course designed to bring their educational levels up to first year university entrance standard. The Tribunal heard and accepted evidence that a number of MOSA students came from dislocated family backgrounds and disadvantaged circumstances. Consequently, teaching in that program required special skills. The Tribunal also accepted that the MOSA unit was a “floating” unit within Monash University. It was funded by an allocation of funds received by it from the Federal Department of Education for all of its Aboriginal programs. Such funds were then re-allocated by the University in its discretion (after discussions with heads of relevant programs) to the various Aboriginal programs which it conducted. At all relevant times, the second respondent was the head of the MOSA programme – she was appointed its Acting Director in April 1993 and became its Director in November 1993.

Relationship between the second respondent and the appellant: the Flinders Island trip

The second respondent was obviously aware of the appellant’s cultural background and it will be recalled that it was she who appointed the appellant to the position of English teacher in the MOSA program and, as the Tribunal found, their relationship from the outset of it until about July 1995 was cordial and even friendly. The change in the second respondent’s attitude towards the appellant and her opinion as to her ability to teach in the MOSA program was prompted by what she believed took place during the four day field trip to Flinders Island in July 1995 by the MOSA students who were accompanied by the appellant. The second respondent did not go on that excursion, but was told by some of the students (and accepted) that, during the trip, the appellant spent her evenings with her daughter, but did not mix socially with the students. The Tribunal found that the second respondent attributed the appellant’s failure to interact with her students to her socially reserved disposition (which was sometimes described as “haughty”) and she was critical of the appellant in that regard. As his Honour noted, the readiness of the second respondent to embrace the suggestion that the appellant did not mix socially with students on the Flinders Island trip was “due to her perception of [the appellant’s] reserved personality and social habits which were themselves a product of her religion and of her race”.

The second respondent believed that the appellant’s failure so to mix with the students meant that she did not develop a proper understanding of their special needs and this had a detrimental impact on her ability to teach the MOSA program as required. The Tribunal found, however, that the second respondent’s criticism of the appellant for failing to mix socially with her students during the Flinders Island excursion, was without foundation.

Non-renewal of appellant’s contract

The appellant’s behaviour in respect of her students during the Flinders Island trip, as perceived by the second respondent, contributed to the growing belief by the second respondent during the latter part of 1995 that, due to her socially reserved manner which inhibited her from mixing with the students, the appellant did not fully understand their needs and consequently lacked the necessary ability to teach in the MOSA program. Thus, in about mid-November 1995, the second respondent reached the decision that the appellant’s contract should not be renewed. The Tribunal found, however, that she had no basis for the view that the appellant lacked interpersonal skills with her students, or that she failed to understand their special needs, or that she otherwise lacked competence to teach in the MOSA program. It was satisfied that the appellant performed her teaching duties competently and satisfactorily and that she had a good relationship with her students. In particular, it said that the appellant related to her students “in a way in which they appreciated and that she had an understanding of cross cultural issues.”

But as his Honour observed, although the Tribunal found that the second respondent’s decision not to renew the appellant’s contract was based on the erroneous view that the appellant’s reserved disposition resulted in her “lack of empathy with the needs of the Aboriginal people and that [the second respondent] became intolerant of this ‘characteristic’”, the Tribunal did not find that the second respondent did not hold those views or that she formed them (or took the action she did) because the appellant’s reserved disposition was a race or religion related “characteristic”.

I mention for completeness that the second respondent’s decision not to renew the appellant’s contract was made at about the time when consideration was being given to the curriculum restructure of the English module of the MOSA course. When the second respondent told the appellant, in about mid-November 1995, that her contract would not be renewed, the appellant complained about this to the Deputy Vice-Chancellor and, as a result, she was offered a six month contract and advised that a restructured three year position as English teacher in the MOSA program would be advertised in the course of that next six months. The appellant assumed that she would be entitled to apply for that position when it was advertised.

The three year contract for the restructured position was advertised on 11 May 1996 on the basis that the applicant for it was required to have, inter alia, certain secondary school teaching experience, being a qualification which was not possessed by the appellant. The Tribunal did not expressly find that the second respondent was responsible for this requirement (although, as his Honour noted, this could be implied having regard to the fact that she was the director of MOSA at the time the advertisement was prepared). Nor did it make a finding that there was relevant impropriety in the inclusion in the advertisement of the requirement as to secondary school teaching experience. The second respondent took sick leave not long after the advertisement was published and the third respondent took over as Acting Director. The Tribunal accepted that she had nothing to do with the advertisement.

In the event, the new teaching position was not established because the third respondent was unable to certify that funding was available and, therefore, the position was withdrawn. It was alleged by the appellant that it was withdrawn for “discriminatory reasons”. The Tribunal found that, although the third respondent formed the view, principally on the basis of what she was told by the second respondent that she was not an appropriate person to teach the MOSA program, the substantial reason for the withdrawal of the position was lack of funding and the decision as to that was non-discriminatory.

The appellant ceased employment with the first respondent on 30 June 1996. There was, however, evidence before the Tribunal that, notwithstanding the funding situation, the appellant could have been given temporary extensions until June 1998. In July 1996, as I have already said, the appellant lodged her complaint with the Equal Opportunity Commission.

Other complaints by the appellant

The appellant made other complaints of discriminatory behaviour on the part of the respondents towards her which were, in effect, rejected by the Tribunal. They included claims that the second respondent:

- inhibited the appellant bringing her daughter on to university premises
-made critical comments about the fact that she wore a national dress, was a vegetarian and abstained from drinking alcohol
-together with the third respondent was complicit in fabricating a series of complaints about the appellant to ensure that, on the expiration of her contract, she would not be reappointed to the MOSA program
-“victimised” the appellant in the sense of singling her out for unfair treatment.

The appellant also complained about the following series of events that she said took place in 1996:

(i)she was put through an ordeal in the form of a meeting at which she was confronted with allegations of which she had no notice and that minutes of that meeting misrepresented the content of the meeting
(ii)she received a letter from the second respondent dated 15 May 1996 in which the second respondent alleged that the appellant was not performing her duties properly
(iii)that without reasonable or proper basis or for any reasonable pedagogic purpose, the second respondent sought to have the appellant’s teaching position restructured and that an inevitable effect of that would be to remove the appellant from her position
(iv)the first respondent withdrew funding for the position when the restructuring attempt was unsuccessful.

In general terms, the Tribunal accepted the appellant’s version of those events. Thus, for example, although it did not deal in its reasons with the letter of 15 May 1996, it found that the representatives of the University (including the second respondent) who had asked her to attend the meetings of 12 February and 1 March 1996, were hostile towards her at those meetings. The Tribunal also found in favour of the appellant in relation to the matter in paragraph (iii) above. In that context, the Tribunal rejected the evidence of the second respondent that the appellant was obstructive towards the new curriculum or that the new curriculum represented a significant departure from what then formed the basis of teaching English at the MOSA course. I have already dealt with the complaint that there was an unlawful withdrawal of funding.

Tribunal’s conclusion

On the basis of the above findings, the Tribunal concluded that “the events of 1995 leading up to the decision by [the second respondent] not to renew [the appellant’s] contract constituted less favourable treatment of [her]” in breach of the legislation. Because under s.102 of the 1995 Act the first respondent was vicariously liable for the conduct of the second respondent and, since it did not seek to extricate itself from such liability pursuant to s.103 of that Act, both respondents were held liable to the appellant. The “events” of which the Tribunal spoke were, of course, the circumstances which led to the second respondent having the view that the appellant did not properly perform her task in the MOSA program and that, for that reason, her teaching contract should not be renewed.

Discrimination legislation

Before dealing with the respondents’ appeal to the learned primary judge, it is convenient to consider briefly the relevant provisions of the 1984 Act and the 1995 Act. The latter came into force on 1 January 1996 when it repealed the earlier legislation. Section 218 of that Act provides that where, as here, a complaint is made after 1 January 1996 but includes alleged contraventions of the 1984 Act, the complainant must establish that the offending contravened both statutes. It will be recalled that here, the bulk, if not the whole, of the impugned conduct occurred in the latter part of 1995 and that the complaint was made in July 1996. Consequently, the appellant’s position was terminated when the 1984 Act was in operation.

Although both Acts seek to achieve the same end, namely, to outlaw in certain circumstances discrimination on stated grounds, including race and religious belief, the language of the later legislation is markedly different and simpler from that found in the 1984 Act. What is true of both Acts, however, is that neither seeks to proscribe all acts of discrimination – see IW v. City of Perth[2]. It is only some discriminatory conduct that is proscribed and then only in certain identified contexts. We are here concerned with conduct which is said to have been discriminatory in the employment context and which was based on race and religion. Turning first to the relevant provisions of the 1984 Act, s.21(2)(b) says, for example, that it is unlawful for an employer to discriminate against an employee on the ground of “status” or by reason of the “private life” of the employee by dismissing him or her. The clear inference from this provision is that an employer may not lawfully dismiss an employee on the basis of the employee’s “status” or “private life”. There are other provisions in sections 21 to 23 which specify the employment context in which discriminatory conduct is proscribed. So far as is relevant the conduct that constitutes discrimination for the purpose of the Act is set out in s.17. Sub-sections (1) and (2) provide essentially that a person discriminates against another (in the relevant workplace context) if, on the ground of the “status” or “private life” of the subject, he or she treats the subject less favourably than he or she treats or would treat a person (“the comparator”) of a different “status” or “private life”, albeit in the same or materially the same circumstances. The “status” of a person is relevantly defined in s.4(1) as meaning, in paragraph (c) the race of that person and “private life” of a person is defined as meaning holding any lawful religious belief or engaging in any lawful religious activity.
[2](1997) 191 C.L.R. 1 at 14-15 per Brennan C.J. and McHugh J.

Section 17(4) of the 1984 Act broadens the operation of s.17(1) (just like, in the case of the 1995 Act, s.7(2)(b) and (c) broaden the operation of s.7(2)(a)). Section 17(4) provides that, “for the purposes of sub-s.(1)”, a person discriminates against the subject in the employment situation if:

“(a)by reason of a characteristic that appertains generally to persons of the status or private life of the [subject] or
(b)by reason of a characteristic that is generally imputed to persons of the status or the private life of the [subject] –

the [alleged discriminator] treats the [subject] less favourably than he or she treats or would treat a person of a different status or with a different private life.”

As his Honour said, the language of s.17 makes it apparent that sub-s.(4) should be read together with sub-s.(1). There are, as his Honour pointed out, a number of reasons for reading sub-section (4) with sub-section (1). First, the opening words of sub-s.(4), namely, “For the purpose of sub-section(1) ...”, particularly when contrasted with the opening words of sub-s.(3), “For the purpose of this section ...”, point to this conclusion. Secondly, if sub-s.(4) were not read with sub-s.(1), the comparison provided for in sub-s.(2) could not readily be applied in respect of conduct falling within sub-s.(4). If the two sub-sections are read together, however, there would be no difficulty in applying the comparison provisions of sub-s.(2) to the sub-s.(4) situation. Next, unlike the possible situation with sub-s.(5), sub-s.(4) does not meaningfully operate of its own volition. In other words, if sub-s.(4) were not read with sub-s.(1), conduct which fell within its ambit would not be proscribed by ss.21 to 23 because sub-s.(4) (unlike the situation with sub-s.(5)), would not by itself make such conduct discriminatory on the ground of “status” or “private life”. Such conduct might be discriminatory conduct but absent its connection with sub-s(1), it would not amount to discrimination “on the ground of status or by reason of the private life of the person” within the meaning of, say, s.21(1) and would, therefore, not be proscribed. On the other hand, if sub-s.(4) were read together with sub-s.(1), any conduct that fell within sub-s.(4) would be regarded as constituting discrimination “for the purposes of sub-section (1)” and, therefore, would be regarded as discrimination on the above grounds and, thus, would fall to be proscribed by ss.21 to 23.

Nevertheless, sub-s.(1) and sub-s.(4)(a) apply to different situations. For example, if a prospective employer refuses to employ an applicant for a position because he belongs to religion X, such conduct would amount to discrimination for the purposes of sub-s.(1) and would be rendered unlawful by s.21(1)(a). But if the proposed employee, who is known to be of religion X, is not employed because of a characteristic that appertains generally to the adherents of that religion, such as the obligation to pray for 15 minutes every hour on the hour during daylight, such conduct would probably not fall within sub-s.(1) because the prospective employee would not have been treated less favourably on the ground of his or her private life, but rather because of a characteristic that generally appertains to persons who are of the same race or religion.[3] Thus, the conduct would probably fall under sub-s.(4)(a). It is likely that s.17(4) was introduced in order to clarify this situation.[4]
[3]It is assumed for the purposes of this example that the requirement of religion X that its adherents pray as has been indicated is a relevant “characteristic” for the purposes of s.17(4)(a).
[4]The history of this sub-section does not assist in the interpretation of it. Nor are the relevant second reading speeches of any help on this issue. A provision similar to s.17(4) was first introduced into the then prevailing legislation, the Equal Opportunity Act 1977, by s.3 of the Equal Opportunity (Discrimination against Disabled Persons) Act 1982. That section inserted s.27A into the principal Act. As the name of the amending legislation suggests, the new provision was concerned with discrimination on the ground of impairment. Section 27A(1), like s.17(4), was concerned with characteristic based discrimination. Section 27A(2), which was similar to s.17(5), dealt with indirect discrimination. The wording of s.27A(1), however, was closer to that of s.7(2)(b) of the 1995 Act than it was to s.17(4) of the 1984 Act. In my view, however, nothing turns on this. So far as is relevant, s.27A(1) provided that a person discriminated against a subject on the ground of impairment “if on the ground of -
...
(b)a characteristic that appertains generally to persons having or who have had that impairment; or
(c)a characteristic that is generally imputed to persons having or who have had that impairment ... –
[the person treated the subject less favourably than a comparator].”

For completeness, I mention that I put to one side the question whether s.17(5)[5] operates independently of sub-s.(1). The matter was adverted to by his Honour who highlighted the different views on this issue that were expressed by members of the High Court in Waters v. Public Transport Corporation[6] as was recognised by this Court in Sinnapan v. State of Victoria[7]. It seems to me that, in any event, sub-s.(5) is relevantly different to sub-s.(4) providing as it does, in terms, for indirect discrimination against another on the grounds of “status” or “private life” and thereby bringing conduct that falls within its ambit directly within reach of ss.21 to 23, something that is not achieved by sub-s.(4) without the aid of sub-s.(1).
[5]Section 17(5) is in the following terms:
“For the purposes of sub-section (1) a person discriminates against another person on the ground of the status or by reason of the private life of the other person if:
(a)the first-mentioned person imposes on that other person a requirement or condition with which a substantially higher proportion of persons of a different status or with a different private life do or can comply;
(b)the other person does not or cannot comply with the requirement or condition; and
(c)the requirement or condition is not reasonable.”
[6](1991) 173 C.L.R. 349
[7][1995] 1 V.R. 421 at 426.

I have already mentioned that the relevant provisions of the 1995 Act are couched in language that is different from and simpler than that of the 1984 Act. Like the 1984 Act, however, the 1995 Act proscribes certain discriminatory conduct by persons who have a particular relationship with the subject whom they have treated “less favourably”. The new provisions, however, do not resort to the rather cumbersome scheme that is present in s.17(4) of the 1984 Act which I have already described. In Part 3, the 1995 Act prohibits certain workplace discriminatory conduct where it is based on any of the attributes of the subject that are listed in s.6. So far as is relevant, they include in paragraph (i) “race” and in paragraph (j) “religious belief”. The definition of these terms is almost the same as that in the 1984 Act. Section 7(2) provides for an inclusive definition of discrimination. It says that discrimination on the basis of attribute includes, so far as is relevant, “discrimination on the basis –

(a) that the subject has that attribute ...;
(b) of a characteristic that a person with that attribute generally has;
(c)of a characteristic that is generally imputed to a person with that attribute ...”.

Direct discrimination occurs if the discriminator treats the subject with an attribute less favourably than he or she treats or would treat someone without that attribute or with a different attribute, albeit in the same or similar circumstances – s.8(1).

Thus, it is apparent that s.7(2)(a), (b) and (c) of the 1995 Act correspond respectively with s.17(1), (4)(a) and (b) of the former Act except that there seems to be no need to read s.7(2)(b) with s.7(2)(a) in order to give them meaningful operation in contrast with the position with s.17(4)(a) and (b). Similarly, as with s.17(4)(a) and (b), s.7(2)(b) and (c) draw a distinction between a characteristic and an attribute and discrimination under s.7 on the basis of a characteristic can only take place if the characteristic is associated with the attribute in the way described in s.7(2)(b) and (c). Consequently, just as with the situation under s.17(4) of the 1984 Act, so under s.7(2)(b) and (c) of the 1995 Act, there can be no characteristic based discrimination if the characteristic is not attribute related.

I mention for completeness that the 1995 Act incorporates within its terms, principles which, although not present in terms in the 1984 Act, probably applied to its operation in any event. For example, the objectives of the 1995 Act include the elimination, as far as possible, of discrimination against people by prohibiting discrimination on the basis of their attributes (s.3(b)). Section 8(2) provides that, in determining whether a person directly discriminates, it is irrelevant whether or not that person is aware of the discrimination or considers the treatment less favourable. It is also irrelevant for that purpose whether or not the attribute is the only or the dominant reason for the treatment, as long as it is a substantial reason. Similarly, in determining whether or not a person discriminates, the person’s motive is irrelevant (s.10). As I have said, these provisions reflect the law as it stood before the new Act – for example, that s.17(1) did not require an intention or a motive to discriminate, was recognised by Mason, C.J., Deane and Gaudron, JJ. in Waters.[8]
[8]At 359

Appeal from Tribunal

The respondents to this appeal challenged the Tribunal’s findings on eight grounds but they succeeded only on one ground (ground (g)) and the appellant now appeals against his Honour’s decision to uphold this ground. Ordinarily, it might not be necessary for the purposes of the appeal as such to deal with any of the grounds which were rejected by his Honour, but having regard to the terms of the respondents’ notice of contention, it will be necessary to refer later to his Honour’s rejection of their claim that the Tribunal erred in construing “characteristic” in s.17(4)(a) as including a personal trait, such as the appellant’s reserved social behaviour.

In substance, the respondents argued below under cover of ground (g) that, since the Tribunal found that the second respondent’s reason for treating the appellant as she did was her belief that she was unsuitable for teaching in the MOSA program because of her reserved social behaviour, but did not find that she mentally connected the appellant’s reserved disposition with her race or religion, the Tribunal erred in law in holding that the respondents had unlawfully discriminated against her under s.17(4)(a) and s.7(2)(b). His Honour accepted the thrust of the respondents’ argument and concluded that the Tribunal fell into error in finding that the first and second respondents discriminated against the appellant contrary to s.21 of the 1984 Act and ss.13 or 14 of the 1995 Act.

Appeal from his Honour’s decision

The appellant appeals against his Honour’s decision on two grounds. First, it is claimed that his Honour erred in concluding that ground (g) was made out by the respondents. Alternatively, it is claimed that his Honour erred in not remitting the proceeding to the Tribunal pursuant to the power contained in s.148(7)(c) of the Victorian Civil and Administrative Tribunals Act 1998.

It is convenient to mention at this point that there were a number of matters that were common ground before us. Some of them were also common between the parties below. For example, it was common ground that it was no part of the appellant’s case that the respondents engaged in indirect discrimination under s.17(5) of the 1984 Act or s.9 of the 1995 Act or that the appellant’s relevant characteristic was imputed to Indian Hindus of Brahmin caste for the purpose of s.17(4)(b) of the 1984 Act or s.7(2)(c) of the 1995 Act. Her case on appeal and below was that the respondents’ discrimination against her was direct discrimination within the meaning of the two Acts – the impugned conduct was said to fall within s.17(4)(a) of the 1984 Act and s.7(2)(b) of the 1995 Act. It was also assumed, for the purposes of the appeal as such, that the appellant was socially reserved and that this was a “characteristic” which was generally attributable to Indian Hindus of Brahmin caste. Similarly, the respondents accepted for the purposes of the appeal only, the Tribunal’s finding that the appellant was treated less favourably than a relevant comparator for the purposes of s.17(4) of the 1984 Act and ss.7 and 8 of the 1995 Act.

The appellant did not contend before us that his Honour erred in his determination as to what were the Tribunal’s findings. Rather, it was put that his Honour erred in construing s.17(4)(a) (and s.7(2)(b)). The appellant’s case was that, on a proper construction of the provisions, it was sufficient if it was established by the appellant that (a) her contract was not renewed because of her reserved social behaviour and (b) this such behaviour is a characteristic that is in fact generally possessed by persons of her race or religion. It was argued that it is not necessary for the purpose of the above provisions for the appellant to establish that a reason for the second respondent’s impugned conduct was that the appellant’s reserved disposition was a race or religion related characteristic in the sense that it appertained generally to persons of her race or religion. It was said for the appellant that since each of (a) and (b) was made out it followed that, in the circumstances of this case, the second respondent engaged in discriminatory conduct against the appellant for the purposes of s.17(4)(a) (and s.7(2)(b)).

In my opinion, the appellant’s argument should be rejected for the following reasons which I shall state briefly and then explain. First, the true reason why the second respondent decided not to renew the appellant’s contract was the perception that she lacked the ability to teach the MOSA program as required. If that be right, then the impugned decision did not amount to discrimination for the purposes of s.17(4)(a) of the 1984 Act and s.7(2)(b) of the 1995 Act. Alternatively, even if it can be said that a substantial reason for the decision in question was the perception by the second respondent that the appellant was of a reserved disposition, on the findings of the Tribunal, the decision was nevertheless not based on the ground (or on the perception) that this “characteristic” was race or religion related. Consequently, the decision is not rendered unlawful by the legislation.

Turning to the first reason, in my view, ss.17 and 21 to 23 of the 1984 Act make it plain that in determining whether the impugned conduct is discriminatory and if so, whether it is proscribed, regard is to be had to the alleged discriminator’s reason, as distinct from his motive or purpose, for such conduct. The use in those provisions of the words “on the ground” and “by reason” makes that fairly clear. As Tadgell, J.A. put it in University of Ballarat v. Bridges[9]: “A difference in connotation between the expression ‘on the ground of’ and ‘by reason of’ is not obvious. Both appear to me to connote the true justification, reason or basis for the implemented decision or determination which is relied on to constitute a proscribed act of discrimination”. Similarly, Ormiston, J.A. in the same case said[10]: “... both ‘ground’ and ‘reason’ connote a basis which actuates or moves a person to decide a matter or to act in a particular way ...” A like conclusion follows in respect of the 1995 Act, having regard to the use of the word “basis” in s.7 and “reason” in s.8(2). In my view, those provisions and s.10 make it apparent that regard is had to the reason of the alleged discriminator for the impugned conduct.
[9][1995] 2 V.R. 418 at 424.
[10]At 438.

Thus, the first step in determining whether the impugned conduct is caught by the legislation is the ascertainment, by a consideration of all the surrounding circumstances, what was the substantial reason (or reasons) for that conduct and whether it was relevantly race related. In other words, it is necessary to characterise the true basis on which the conduct was pursued. It seems to me that such an approach was undertaken in Bridges and Department of Health v. Arumugam[11] illustrate such an approach.
[11][1988] V.R. 319.

In the first case, the complainant applied for a position with the Ballarat University and was subjected to a series of questions by the interview panel about her young children and what impact her responsibilities to them would have upon her employment if she were successful in her application. The effect of these questions was to unsettle and confuse her so that she performed badly in the interview and for that reason was denied the position for which she applied. Thus, her failure to secure the job was found to be based not on the answers she gave about her parenting or on her parental status, but on her perceived poor performance in the interview. This last finding was, to the mind of the Full Court, fatal to her complaint of impermissible discrimination. Their Honours held that it was not sufficient that there was impermissible discriminatory conduct relating to her parental status in the steps leading to the decision not to employ her. A breach of s.21(1) of the 1984 Act will be made out only where it is established that the true basis for that decision was her parental status.

In Arumugam, the complainant alleged direct discrimination, namely, a refusal to employ him on the ground of his race. The findings of the Equal Opportunity Board (“the Board”) were that, of the five appellants, the complainant was the best qualified for the position in question but that he was perceived by the selection panel to be “less articulate and less aggressive” than the successful applicant. The panel was of the opinion that the position demanded a person who was dynamic and articulate. Accordingly, his application was unsuccessful. The Board concluded that the panel had discriminated in breach of s.21 of the 1984 Act on the ground of race. The decision was set aside by Fullagar, J. because there was no actual finding on race-based discrimination. His Honour considered that the Board wrongly inferred discrimination from the facts that the best applicant was passed over, that two members of the five member panel had determined that the complainant should not get the position, that their perception of his not being articulate and aggressive was in fact erroneous and that these two members did not bona fide hold that perception. Fullagar, J. noted that what the Board did, faced with these findings, was to set up a kind of res ipsa loquitur which shifted the onus on the employer to establish that the decision not to employ the complainant was not based on impermissible discrimination.

In my opinion, the Tribunal’s essential finding was that the true (albeit erroneous) reason why the second respondent decided not to renew the appellant’s contract was because, in her view, the appellant lacked the ability to teach in the MOSA program as required. True it is that she also believed (again, erroneously according to the Tribunal) that the reason for this unsuitability stemmed from her reserved disposition, but that was a cause of the appellant’s unsuitability and not the reason for deciding that the appellant’s contract should not be renewed. On its true characterisation, the reason for the non-renewal of the contract of employment was that the employee was not capable of doing the job required of her. Thus, the second respondent so treated the appellant not by reason of her reserved behaviour, which I assume for the moment to be a “characteristic” within the meaning of s.17(4)(a) (and s.7(2)(b)) but, as I have said, because of her (erroneous) view that she was unsuitable for teaching in the MOSA program. For completeness I mention that the mere fact that the belief of the second respondent was erroneous is irrelevant for the purposes of the legislation and does not turn the conduct from being non-discriminatory to discriminatory. There is no suggestion or finding that the second respondent did not hold such belief and merely used it as a pretext to mask a true reason which was race related.

Consequently, the impugned conduct did not amount to discrimination for the purpose of the above provisions.

I now turn to the alternative reason for rejecting the appellant’s submission. In my view, his Honour was right to conclude that, in order for the appellant to establish that the respondents engaged in “characteristic” discrimination for the purposes of s.17(4)(a) (and s.7(2)(b)), it was necessary for the appellant to show affirmatively that the reason for the second respondent’s decision was that the appellant’s reserved disposition was a race or religion based characteristic and that it was not sufficient for her merely to show that the reserved behaviour was in fact a characteristic that was race or religion based. In my opinion, in order to establish such discrimination, the appellant was required to demonstrate that the second respondent’s reasons for her conduct embraced both concepts referred to in s.17(4)(a), namely, that the appellant had the characteristic in question (the socially reserved disposition) and that the characteristic (in this case) is race or religion related, that is to say, is generally a feature of persons of the appellant’s race or religion. I have reached this conclusion for the following reasons.

First, on its proper construction, s.17(4)(a) of the 1984 Act is concerned with the reasons why the alleged discriminator treated the subject less favourably – this much seems clear from the words of the sub-section and in particular, the words “by reason of”. In my view, the “reason” can only be that of the alleged offender; it cannot sensibly apply in respect of any other relevant party contemplated by the provision. Hence, the conduct with which the sub-section is concerned is that of the alleged offender and the relevant question becomes whether it was undertaken because it was the offender’s perception (or that person’s reason) that the characteristic in question is attribute[12] related in the way set out in the sub-section. Thus, on a plain reading of s.17(4)(a), its operation is confined to the situation where the subject was treated less fairly because the alleged offender perceives that (a) the subject has a particular characteristic and (b) the characteristic is relevantly attribute based.
[12]Unless otherwise indicated, it is intended that this term also encompass status and private life within the meaning of the 1984 Act.

Secondly, such a construction of s.17(4)(a) gives it an operation that is consistent with that of sub-s.(1). The latter makes it plain that it is only if the alleged offender’s “ground” for treating the subject less favourably is relevantly attribute related, in the case of that provision, if it is based on the subject’s status or personal life. As I have sought to explain, on its proper construction, sub-s.(4)(a) also operates in respect of the conduct which was based on an attribute related reason, albeit in the case of that provision, on a characteristic of the subject which is attribute related in the way set out in the sub-section. The similarity between the two sub-sections in this respect is, therefore, apparent and that is not surprising given that, for the reasons provided earlier, sub-s.(4)(a) should be read together with sub-s.(1). On the appellant’s argument, however, there would be incongruity in the operation of the two provisions since sub-s.(4) could operate even if the offender’s reasons for engaging in the conduct in question did not include the reason that the characteristic was attribute based. As I have said, it would be sufficient, according to the appellant, if the offender’s reason for acting as he did was the presence in the subject a particular characteristic which was in fact attribute related. There is, however, nothing in the terms of s.17 or any other provision of the 1984 Act which suggests that there is one kind of test for the purposes of sub-s.(1) and yet another for the purposes of sub-s.(4)(a).

The third reason why the interpretation of sub-s.(4)(a) which I favour should be preferred to that of the appellant is that it provides for a sensible and practical operation of the sub-section which is consistent with the policy of the Act, whereas the appellant’s construction would lead to results which could not have been intended by Parliament. For example, on the appellant’s interpretation of the provision, an employer could not lawfully dismiss an employee who is a member of religion X to which I have referred[13] on the ground that he throws the production line into chaos because he stops work for 15 minutes every hour in order to pray in accordance with the requirements of his religion. According to the appellant, such a dismissal would constitute a breach of the legislation simply because the employee would have been treated less favourably by reason of a characteristic which happens to appertain generally to persons who are adherents of that religion. (This would be so even where the employer did not know about the reason for the employee’s work stoppages). Similarly, if the appellant’s submission is accepted, it would follow that an employer could not dismiss A even though he is lazy and cannot work properly simply because he happens to come from island X, the adult occupants of which have a characteristic similar to that of A. Thus, the appellant’s construction of s.17(4)(a) would inhibit employers and give protection to employees in circumstances which could not have been intended by the legislature. On the other hand, the preferred construction of sub-s.(4)(a) does not lead to such results. Thus, in the examples that have been provided, subject to special legislation to the contrary, the employer would be free to dismiss the employee because he has failed to carry out the work required of him in breach of his contract of employment.
[13]See para [23].

To reiterate, on the basis of the preferred construction of s.17(4)(a), the appellant was required, in order to make out “characteristic” discrimination on the part of the second respondent, to establish that a substantial reason for her decision was that the appellant’s reserved disposition was a race or religion based characteristic. But, as I have said, the Tribunal did not make any finding to that effect. On the contrary, as his Honour correctly pointed out, the Tribunal’s finding on this issue was limited to the finding that the second respondent’s decision was based on her erroneous views as to the appellant’s ability to teach the MOSA course as required which, in turn, was based on her perception of the appellant’s reserved social behaviour. It follows that her decision did not amount to discrimination for the purposes of s.17(4)(a) of the 1984 Act.

For like reasons, since the appellant has failed to establish that the impugned decision was made on the “basis” that the appellant’s reserved social behaviour was a characteristic that was attribute related for the purposes of s.7(2)(b) of the 1995 Act, the decision in question was not rendered unlawful by the 1995 Act.

Remitting proceeding to the Tribunal

The appellant argued that, even if his Honour was correct in setting aside the Tribunal’s decision, he erred in not remitting the matter to the Tribunal to determine if there was a causal nexus between the second respondent’s treatment of the appellant and the latter’s cultural background and circumstances.

In his reasons for judgment handed down on 9 December 1999, his Honour said that he considered whether to remit the matter to the Tribunal in order that it re-reconsider the evidence in light of his ruling but decided against such a course. His Honour said that, since the Tribunal did not make its decision on the basis of a finding that the less favourable treatment of the appellant by the respondent was based on her cultural circumstances but rather on the basis that she erred in her assessment of the appellant’s teaching capabilities, no good purpose would be served by remitting the matter to the Tribunal. Consequently, his Honour said, he proposed to allow the appeal and set aside the Tribunal’s decision and orders. It seems, however, that this was only a tentative view because his Honour heard argument on the issue on 14 December 1999. The appellant’s then counsel contended before his Honour, as her different counsel did before us, that there was evidence before the Tribunal on which it could make the relevant findings. Despite the fact that his Honour asked counsel on a number of occasions what was the evidence on which the Tribunal could make such findings, counsel did not point to any such material. A similar position occurred on appeal. The appellant’s counsel did not articulate what evidence was (or could be put) before the Tribunal to sustain the findings sought on the remitter. After hearing counsel, his Honour confirmed his earlier decision not to remit the matter to the Tribunal. He concluded that it would be a matter of speculation as to whether the findings which were said to constitute a gap could be made. His Honour also considered that the Tribunal had examined the evidence with a good deal of care and although it had fallen into error of law, given the findings which it made, it was unlikely that, on remittal, it would simply make a formal finding as was sought by the appellant.

In my view, his Honour correctly declined to remit the matter. First, given its findings as to the ground on which the second respondent concluded that the appellant’s contract should not be renewed, it would not be open to it to find, on the same evidence, that the real reason for the non-renewal of the contract was, in effect, the appellant’s cultural background. In those circumstances, this is not a matter that should have been remitted to the Tribunal for re-hearing but one where the court was bound to set aside the Tribunal’s orders – Aramugam.[14] At its lowest, given the Tribunal’s findings, it would be futile to remit the proceeding to the Tribunal – it is extremely difficult to see how, on the remitter and given its abovementioned findings, it could come to the conclusion for which the appellant contends - Ranatora v. The Minister for Immigration and Multicultural Affairs.[15]
[14]At 335 per Fullagar J.
[15](1998) 154 A.L.R. 693, at 670 per Hill, J.

Moreover, as Ms Mortimer, who appeared before us for the respondents, pointed out, there are practical considerations which stand in the path of remitting the matter to the Tribunal. First, even if it were legally permissible to remit only part of the proceeding, given the issue on which a finding would be sought by the appellant on remitter, the whole matter would have to be reconsidered. Moreover, given that the issue in question would involve a finding based on credit, the matter would have to be remitted to a newly constituted Tribunal, otherwise there may be a justifiable claim by the respondents that the former Tribunal was disqualified on the ground of perceived bias – Northern NSW FM Pty. Ltd. v. Australian Broadcasting Tribunal[16]. In any event, even if the former Tribunal could properly sit to determine the remitter, we were told that there might be difficulty in re-constituting the same Tribunal given that its then senior member is no longer a member. It was claimed, with some justification, I think, that it would not be appropriate to have the remaining member deal with the remitter given that the respondents had the benefit of two minds at the principal hearing and they should not be deprived of that at the hearing of the remitter. Further, it was said on behalf of the respondents that, given the passage of time since the events in question and the hearing before the Tribunal, there may be difficulty in securing the attendance of witnesses. There was also the question of another round of costs that would have to be suffered by the respondents on any remission hearing which may not be recoverable by them, no matter what the outcome of such a proceeding.
[16](1990) 26 F.C.R. 39 at 43.

In the circumstances, as I have said, I am of the view that his Honour was correct in declining not to remit the matter for further consideration by the Tribunal.

Notice of contention

I now come to the notice of contention. It is there claimed that his Honour should have held that:

(a)s.17(4)(a) of the 1984 Act and s.7(2)(b) of the 1995 Act should not be construed as capable of including a personality trait within the definition of the word “characteristic”; and
(b)the Tribunal erred in finding that the appellant’s “haughtiness” [or reserved behaviour] was a characteristic appertaining to the appellant’s race for the purpose of s.17(4)(a) of the 1984 Act and s.7(2)(b) of the 1995 Act.

As I have said, the respondents claimed below and before us that the appellant’s reserved social behaviour was no more than a personality trait and that this was not a “characteristic” within the meaning of s.17 of the 1984 Act. It was put below that, unlike physical characteristics such as skin, colour or objectively identifiable practices or conduct, such as dietary habits or mode of dress, personality traits differ from person to person and, with the same person from time to time. Thus, it was said, they do not fall within “characteristic” in the legislation. His Honour concluded, however, that personality trait of reserved behaviour was capable of constituting a characteristic within the meaning of s.17(4) of the 1984 Act and s.7(2) of the 1995 Act. Consequently, he concluded that ground (a) failed.

Before us, the respondents argued that, although s.17(4)(a) and s.7(2)(b) were not limited to physical characteristics of a complainant, the non-physical characteristics like the one relied upon by the appellant should be objectively identified and articulated. It was submitted that, although it is arguable that a personal trait may be imputed as a characteristic for the purposes of s.17(4)(b) or s.7(2)(c), it is difficult to say that a personal trait can be a characteristic that generally appertains to persons of a particular race or religion for the purposes of s.17(4)(a). (Since it was not claimed by the appellant that the characteristic in question was imputed, the ambit of the operation of s.17(4) or s.7(2)(c) did not arise for determination.)

It will be recalled that the Tribunal made no finding as to the degree or the extent to which the appellant was reserved in the social context or how that reserved demeanour manifested itself in such an environment. Given that it considered that the appellant did sufficiently interact with the MOSA students and that she performed her teaching tasks with sufficient skill, on the face of it, it is difficult to see how the appellant’s reserved nature was materially different from that experienced by a large section of the community. In those circumstances, there seems to be some force in the respondents’ argument that the appellant’s trait of being socially reserved did not go beyond what may be found amongst a significant proportion of the population and thus, did not amount to such a distinguishing feature of her psychological make-up so as to constitute a characteristic for the purposes of the legislation. A similar observation may be made concerning the Tribunal’s findings that the reserved behaviour of Indian Hindus of Brahmin caste is a “characteristic” within the meaning of the Act. It is not clear whether all such persons are so reserved and if so, whether they are all reserved to the same extent. It seems from the Tribunal’s extensive reasons that it was not called on to explore those issues, nor was any evidence led in relation to those matters. There was a general assertion by the appellant, which was not challenged by the respondents and which was accepted by the Tribunal, that Indians of Hindu religion who were born into Brahmin caste were socially reserved. But what that actually meant was not analysed. As I have said, there is force in the argument that such evidence does not establish that the appellant’s personality trait was so distinguished from like traits found in the community as to constitute a “characteristic”. The same applies to the claim that Indian Hindus of Brahmin caste are socially reserved.

Having said that, however, it is not necessary to decide whether the claims in the notice of contention have been made out because, for the reasons I have given, his Honour did not err as is contended for by the appellant.

Consequently, for the above reasons, I would dismiss the appeal.

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[2001] VSCA 247

21 December 2001