Kidman v Casino Canberra Ltd ACN 051 204 114
[2020] ACAT 50
•6 July 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KIDMAN v CASINO CANBERRA LTD ACN 051 204 114 (Discrimination) [2020] ACAT 50
DT 32/2019
Catchwords: DISCRIMINATION – industrial activity – whether the applicant was treated unfavourably – was the unfavourable treatment on the basis of the applicant’s industrial activity – whether the applicant breached rules of the employee handbook or code of conduct – costs order when a party caused a unreasonable delay or obstruction – costs order made
Legislation cited: ACT Civil and Administrative Act 2008 s 48
Discrimination Act 1991 ss 7, 8, 10
Fair Work Act 2009(Cth) ss 3, 346
Human Rights Commission Act 2005 s 53E
Cases cited:Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64
Director General of Education v Breen [1982] 2 IR 93
IW v The City of Perth [1997] HCA 30
Kovac v The Australian Croatian Club Limited (No. 2) [2016] ACAT 4
Nester v ACT Fire Brigade [2004] ACTDT 2
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Shammas & Canberra Institute of Technology [2012] ACAT 24
Waters v The Public Transport Corporation [1991] HCA 49
Tribunal: Senior Member J Lennard
Date of Orders: 6 July 2020
Date of Reasons for Decision: 6 July 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL DT 32/2019
BETWEEN:
BRYAN KIDMAN
Applicant
AND:
CASINO CANBERRA LTD ACN 051 204 114
Respondent
TRIBUNAL: Senior Member J Lennard
DATE:6 July 2020
ORDER
1.The respondent has contravened section 10(2) of the Discrimination Act 1991 by subjecting the applicant to unfavourable treatment in his employment because of his industrial activity.
2.The respondent shall display a copy of these orders on all of the employee notice boards located within the Casino premises, for a period of 14 days from receipt of these orders.
3.The respondent shall pay to the applicant general damages in the amount of $4,000, on or before 14 days from the date of these orders.
4.The respondent shall pay to the applicant legal costs in the amount of $4,620, on or before 14 days from the date of these orders.
………………………………..
Senior Member J Lennard
REASONS FOR DECISION
Background facts
1.Mr Bryan Kidman (the applicant) has been employed by Casino Canberra Ltd (the respondent) since March 2003. Aquis Entertainment Limited operates Casino Canberra. The applicant has been employed fulltime as an inspector since 10 November 2008. The applicant’s contract of employment with the respondent requires him to comply with the workplace policies and procedures of the respondent, which include the Casino Canberra - Employee Handbook and the Aquis Entertainment – Code of Conduct.
2.The applicant is a delegate of the United Workers Union (the Union).[1] In his role as a delegate he is involved in promoting union campaigns as well as providing advice and individual representation to United Workers Union members.
[1] Formerly United Voice Union
3.On or about 21 December 2018, the respondent informed its employees that a transaction had been entered into by which Blue Whale Entertainment Pty Ltd had agreed to acquire a majority shareholding in Aquis Entertainment Limited.[2] Blue Whale Entertainment had a business association with the investment manager of the SB & G Hotel Group, the owner of the Crowne Plaza Hotel located adjacent to Casino Canberra. The share transfer transaction was generally referred to as the sale of the casino.
[2] Respondent’s submission paragraph 13
4.On 4 July 2019, the Union wrote to the respondent on behalf of the workers and made a formal request to commence bargaining to negotiate an enterprise agreement under the Fair Work Act 2009. On 4 July 2019, the Union wrote a second letter to the respondent stating:
we have read reports that Blue Whale are considering outsourcing the management of the Casino to an external manager with the intention that both the Casino and Plaza come under a single management structure. [3]
[3] Exhibit A1 annexure BK 03
The Union requested a meeting to discuss the impact of the proposed (post sale) restructure on its members employed at both Casino Canberra and Crowne Plaza.
5.On 5 July 2019, the respondent replied and stated that its preference was not to commence bargaining while the sale of the casino was pending, and that any press report as to what Blue Whale might be planning after the completion of the sale was “speculative”.
6.On 8 July 2019, the Union wrote to the respondent stating that its members remained “concerned given the reports of a looming restructure which have appeared in the media”. The Union asked the respondent to relay a request for the following undertaking to Blue Whale:
United Voice is seeking an undertaking from Blue Whale that following the finalisation of the sale it will:
a. remain bound by the existing enterprise agreement and specifically not reduce wages or existing penalty rates for Casino Canberra employees;
b. not contract out any work currently performed in house at the casino (cleaning, security food and beverage);
c. not implement forced redundancies or disadvantage existing employees;
d. not implement changes to hours or rosters and/or reduce the hours of casuals.[4]
[4] Exhibit A1 annexure BK04 letter dated 8 July 2019
7.On 15 July 2019, the respondent conveyed a reply from Blue Whale:
1. Blue Whale is currently undertaking a probity review with the ACT Government which is a condition precedent to the completion of the purchase of shares in Aquis Entertainment Limited;
2. it is premature for Blue Whale to enter into any discussions regarding detailed staffing plans, or indeed to provide any form of undertaking in relation to any of the points in your letter;
3. Blue Whale can, however, confirm that it is purchasing the shares in Aquis Entertainment Limited as owner of Casino Canberra, with the intention to grow the casino business, which would in turn increase employment, hours and opportunities for all employees, including existing employees of Casino Canberra;
4. in the meantime (and beyond Blue Whale’s purchase of the shares) Aquis Entertainment Limited is an entity in its own right which will continue to operate the casino business on a business as usual basis, making decisions as required in determined by the needs of the business at any point in time as it has done so to date.[5]
[5] Exhibit A1 annexure BK05 email from Shane Maundrell to Lyndal Ryan dated 15 July 2019 at 11:25
8.At this point in time neither the respondent nor Blue Whale had given the Union any undertaking about maintaining staff job security, wages or conditions.
9.In early August 2019, the Union’s media team contacted The Canberra Times about the respondent’s refusal to provide undertakings requested in letters of 8 July 2019. An interview was arranged between the applicant and The Canberra Times. The applicant gave evidence that he attended the interview and participated as the Union delegate, to support the Union’s campaign and to represent the views of members.
10.An article was published in The Canberra Times on 6 August 2019. A copy of that article was in evidence before the Tribunal. The article identified the applicant as a delegate for the hospitality workers union. The following extracts are the quotes attributed to the applicant:
Bryan Kidman, who has worked on the casino’s gaming floor for more than 16 years, said employees were in the dark about staffing levels, wages and conditions ahead of a looming shift in the ownership structure of the city casino.
…
Mr Kidman, who is a delegate for the hospitality workers union, United Voice, said neither Aquis or Blue Whale had provided workers with written assurances about their employment conditions once the deal was complete.
Mr Kidman said the union approached Aquis earlier this year seeking to negotiate a new pay deal, as the existing agreement was due to expire on June 30.
The union was told that talks would not start until the sale was complete, prompting it to ask for a “letter of intent” stating that existing working conditions would be retained under the new owners.
It also sought guarantees that, following the sale, there would be no forced redundancies, changes to hours or rosters or any outsourcing of work.
The old agreement has since expired, although the conditions will remain in force until a new deal is struck.
If they won’t give us an undertaking about the conditions, then there must be a reason for that,” Mr Kidman said.
There is just the uncertainty of not knowing what our conditions are going to be. People are a bit worried in the hospitality industry because of what has happened in the past.
We are not being told anything, we’ve had no information.
11.On 8 August 2019, the respondent wrote to the applicant setting out their concerns about the statements attributed to the applicant in The Canberra Times article:
(a)That the statement, “If they won’t give us an undertaking about the conditions, then there must be a reason for that,” may be in breach of the “Your Behaviour” section of the casino’s Employee Handbook where it is stated that as a Casino Canberra team member you must always adhere to the following standards: … do not spread or support rumours/gossip.
(b)That the statement, “We are not being told anything, we’ve had no information,” misrepresents the communications that have passed between management and staff in relation to the sale process.
12.This letter set out some specific questions in relation to the comments and requested the applicant to answer those questions and was stated to provide to the applicant “an opportunity to explain all relevant circumstances, as you see them, pertaining to the comments attributed to you in the article.”
13.The letter under the heading “WAY FORWARD” concludes:
Having regard to any response you provide to me, I may determine:
Ø on a preliminary basis that you have not met the Casino’s required standards of behaviour. Please note that if you do not provide a written response or attend an interview with me, I will proceed based on the information available to me; and
Ø in the circumstances, it is appropriate that the matter proceed to formal performance counselling - in the terms contemplated by paragraphs 2.3 to 2.7 of the Casino Staff Performance Counselling and Discipline Policy.
14.The Casino’s Employee Handbook: “Playing by the Rules: Workplace Conduct, Policies and Procedures” (Handbook), under the heading “Your Conduct in The Workplace” notes that all staff of Casino Canberra are required to comply with the Aquis Entertainment Limited Code of Conduct. The Handbook sets out detailed rules relating to the conduct of employees of the Casino while they are at work in the Casino. The Handbook deals with issues such as workplace surveillance, personal telephone calls, mail correspondence, smoking, entering and leaving the casino, after hours use of the casino facilities, use of the change rooms and lockers, and of team notice boards to communicate work related personal and leisure information for employees.
15.Under the heading “Your Behaviour” the Handbook provides as follows:
As a Casino Canberra team member, you must always adhere to the following standards:
· you must willingly follow the reasonable (and lawful) direction of your manager/supervisor (if safe to do so);
· you must treat all people with dignity, courtesy, honesty, fairness and respect at all times;
· you must respect and be sensitive to an individual’s cultural and ethnic background;
· you must not engage in, and must actively discourage, any form of bullying, discrimination, harassment or victimisation;
· avoid offensive, abusive and discriminatory language and behaviour. Do not spread or support rumours /gossip;
· improper behaviour towards a patron or fellow staff member that reflects poorly on the Casino or has a detrimental impact on patron service and team relations will not be tolerated;
· under no circumstances will any disagreement among staff be raised in any guest areas;
· leaving work before completion of your shift without permission, purposely working slowly, or sleeping while on duty, is unacceptable;
· do not gather in groups to discuss personal matters or casino related business in any guest areas;
· you must adhere to any relevant legislation or policy provisions relating to the treatment of personal information and you must only access and use personal information for the purpose for which it was originally gathered;
· at no time should you offer complimentary or discounted food and beverage to patrons, or staff (outside of approved staff discount), without prior authorisation from a department head;
· eating, drinking and chewing gum are not permitted while you are on duty;
· off duty conduct that reflects adversely on the Casino or materially affects others job performance is unacceptable;
· you must adhere to all Casino Canberra policies and procedures and standards at all times.
16.A copy of the Aquis Entertainment Code of Conduct was in evidence before the Tribunal and it provides at clause 18:
Adherence to this Code and Aquis Entertainment’s policies is a condition of employment at Aquis Entertainment. Breaches of the code may be subject to disciplinary action including termination of employment, if appropriate.
17.A copy of the Casino Canberra Staff Performance Counselling and Discipline Policy was in evidence before the Tribunal. It is stated to address concerns or issues regarding work performance or conduct. It provides in clause 2.2 that it may be appropriate for formal performance counselling be provided to a staff member before other disciplinary action is taken.
18.The applicant gave evidence that he understood from his dealings with the casino’s human resources as a union delegate that the letter was the beginning of a process which could potentially lead to disciplinary action. The applicant gave further evidence that the manner in which the whole incident unfolded gave rise to a genuine concern by him that he could lose his job. The applicant was forthright and direct in his evidence and answers; he gave clear and consistent answers to questions and made concessions when necessary; his evidence under cross examination was consistent with his written statement.
The relevant legislation
19.The Discrimination Act 1991 (the Discrimination Act) defines ‘discrimination’ at section 8:
Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
20.Section 7 of the Discrimination Act provides:
Protected attributes
(1) This Act applies to discrimination on the ground of any of the following attributes (a protected attribute):
…
(j)industrial activity;
…
21.Section 10(2) of the Discrimination Act provides:
(2) It is unlawful for an employer to discriminate against an 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 benefit associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
Has the respondent treated the applicant unfavourably?
22.This is a question of fact for the Tribunal to determine: it is not a comparative test, but it is an objective test. The question for the Tribunal to determine is whether the writing of the letter of 8 August 2019 was unfavourable treatment. That is, did the respondent treat the applicant unfavourably? The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[6] In determining this matter, the Tribunal must have regard to the contents of the letter, and the context in which it was written and sent to the applicant.
[6] Complainant 201823 v Insurance Australia Group Ltd Trading As NRMA [2019] ACAT 64 at [6]-[7]. See also Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
23.The applicant contends that the respondent has sent a letter which might reasonably be interpreted as the beginning of a workplace disciplinary process which could result in the termination of employment.
24.The applicant made written submissions as to whether the respondent’s letter to the applicant of 8 August 2019, and the requirements it imposed on him, constituted unfavourable treatment within the meaning of section 8(2) of the Discrimination Act. Those submissions refer the Tribunal to Prezzi:[7]
all that is required is whether the consequences of dealing with the complainant are favourable to the complainant’s interests, or adverse to the complainant’s interests.
[7] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
25.The applicant submits that it cannot sensibly be said that singling out an employee for investigation is anything other than adverse to their interests. The applicant gave evidence, which was not challenged by cross examination, that letters of this sort are the usual first step taken by the respondent in a disciplinary investigation.
26.The respondent made submissions that the sending of the letter, and the content of the letter, was not unfavourable treatment. The respondent argued for a definition of unfavourable as being likely to lead to an adverse outcome or causing disadvantage. The respondent submitted that properly construed the letter was:
neutral in its treatment of Mr Kidman. While the letter did identify the potential for an unfavourable outcome, by its terms, the letter did not portend or propose an unfavourable outcome to Mr Kidman; and upon Mr Kidman responding to the 8th of August 2019 letter there was no unfavourable or disadvantageous outcome for Mr Kidman.
27.The Tribunal must determine whether the writing of the letter, and the terms of the letter, constituted unfavourable treatment. It is not for the Tribunal to determine this by reference only to the actual outcome of the process initiated by writing the letter. It is not necessary for the applicant to establish an adverse outcome from the process initiated by the letter. The letter was the first step in a process of disciplinary action; that it was (properly) neutral in its terms cannot prevent the writing of the letter from being unfavourable. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 the High Court noted that it was not seriously disputed that the writing of a letter by an employer to an employee, instigating an investigation as to whether the employee had engaged in conduct that amounted to a breach of the code of conduct which was part of his employment contract, was adverse action.[8]
[8] See Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 at 6-11
28.The Tribunal accepts the submissions and evidence of the respondent that the writing of such letters is commonplace and a usual part of the duties of human resources managers. There is evidence before the Tribunal that the respondent had caused similar letters to be sent to other staff members who made public comments, perceived to be adverse to the interests of the Casino. The question isn’t whether letters of this sort are usually sent to staff members believed to have breached a code of conduct or acted wrongly. The issue is whether sending such a letter is unfavourable treatment of the applicant.
29.The applicant gave evidence that he believed, based on his experience in human resources matters within the casino, that the outcome of any investigation might have serious consequences for him; and the conduct of the respondent caused him personal distress, stress and sleepless nights. The applicant was forced to respond in writing to the letter, defending his statements and explaining his conduct. The applicant sought advice from the Union. On 12 August 2019, the Union wrote to the respondent in the following terms:
Mr Kidman denies that he has breached any workplace policies. Mr Kidman is a United Voice delegate at Canberra and has a legitimate entitlement to represent and advance the views, claims and interests of United Voice members. The comments Mr Kidman made to the Canberra Times were in his capacity as a union delegate, and intended to represent the views and concerns of United Voice members and employees at Casino Canberra
…
We request that you, in writing:
1. withdraw the allegations made against Mr Kidman contained in the correspondence and;
2. make a public apology to Mr Kidman and;
3. acknowledge the rights of United Voice delegates to represent and advanced the views, claims and interests of members.
30.The respondent responded on the same day and denied that the writing of the letter was connected to the applicant’s industrial activity and stated that it had written the letter to investigate whether the applicant had acted contrary to the requirements of the Handbook and Code of Conduct and noted, with reference to legal authority that “an employer can lawfully take adverse action against an employee for misconduct”. I note that lawful action can be unfavourable treatment.
31.The applicant made written submissions that it is:
plainly adverse to an employee’s interest to commence and carry on investigations of this nature. The imposition of requirements to respond, the potential negative impact on his employment status, is a clear detriment to an employee: it is, at its absolute lowest, a threat of repercussions for activity. This is unfavourable treatment within the meaning of the Discrimination Act.
The Tribunal agrees with this viewpoint.
32.I am satisfied on the evidence before me that Casino Canberra has treated the applicant unfavourably, or has subjected him to unfavourable treatment.
Was the unfavourable treatment on the basis of the applicant’s industrial activity?
33.Section 8 of the Discrimination Act makes it necessary to establish a causative link between the conduct complained of and the adverse consequences for the person making the complaint.[9] It is necessary, therefore, to seek out the true basis of the respondent’s conduct insofar as it has been found to constitute unfavourable treatment. It is unnecessary, however, to establish that the unfavourable treatment was intended or motivated by a discriminatory attitude.[10]
Industrial activity
[9] See Waters v Public Transport Commission [1991] HCA 49
[10] Nester v ACT Fire Brigade [2004] ACTDT 2
34.In written submissions received by the Tribunal on 23 December 2019, the respondent acknowledged “that Mr Kidman’s conduct in connection with him making comments to The Canberra Times, included as one of its attributes, an attribute of industrial activity”.[11] However, in the hearing, the respondent made submissions that the Tribunal should not be satisfied that the applicant, in being interviewed by The Canberra Times was engaging in industrial activity. Further, the respondents submitted that the Tribunal could not be satisfied that the applicant was acting as a Union delegate as there was no formal proof of any delegation or authority for him to take part in that interview as spokesman for the Union.
[11] Submissions for Casino Canberra received in Tribunal 23 December 2019 at [23]
35.In his written statement, provided to the Tribunal on 2 December 2019, the applicant said at paragraph 5:
I am a delegate of the United Workers Union (formerly United Voice). In my role as delegate, I am involved in promoting union campaigns, and also providing individual representation and advice to UWU members. I have attended many disciplinary meetings as a representative for Casino Canberra workers and I am very familiar with the Casino’s processes.
36.In his oral evidence, and in cross examination on the first day of the hearing the applicant refers on several occasions to his role as a union delegate. Mr Maundrell, who was cross examining, at no time put to the applicant any question as to his actual authority to speak to The Canberra Times as a representative of the Union. In a letter to the respondent on 12 August 2019 the Union stated:
Mr Kidman is a United Voice delegate at Canberra and has a legitimate entitlement to represent and advance the views, claims and interests of United Voice members.
37.I am satisfied on the evidence before me that the applicant was a Union delegate who was authorised to attend the interview with The Canberra Times.
38.The Dictionary to the Discrimination Act defines industrial activity:
industrial activity means any of the following:
(a) being or not being a member of, or joining, not joining or refusing to join, an industrial organisation or industrial association;
(b) establishing or being involved in establishing an industrial organisation or forming or being involved in forming an industrial association;
(c) organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association;
(d) encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or industrial association;
(e) not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation or industrial association;
(f) representing or advancing the views, claims or interests of members of an industrial organisation or industrial association.
39.The evidence before the Tribunal establishes, on the balance of probabilities, that workers at the casino were concerned about what might happen to their jobs and terms of employment once the sale of the casino had been completed. The Union had raised concerns with both the current management of the casino and the prospective buyer and were not satisfied with the information they had received. Exerting public pressure on an employer is a commonplace and legitimate industrial activity. Obtaining publicity by participating in interviews with a local newspaper is lawful activity often used by industrial unions to advance the views and interests of their members.
40.On the evidence before me, I am satisfied that the applicant was engaged in a lawful activity on behalf of the Union and was representing or advancing the views and interests of members of the Union. Therefore, his activities would fall within the definition of ‘industrial activity’ at paragraphs (c) and (f) above.
Did the casino subject the applicant to unfavourable treatment because of the attribute ‘industrial activity’?
41.The Discrimination Act imposes an objective test for causation. The question to be asked is whether the applicant was treated unfavourably because of having the attribute of [engaging in] industrial activity. The applicant must establish a direct causal link between the unfavourable treatment and the attribute of the complainant, in this case ‘industrial activity’. Section 4A(2) of the Discrimination Act provides a reference to doing an act because of a particular matter. It includes doing an act because of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
42.In Shammas v Canberra Institute of Technology [2012] ACAT 24, the tribunal stated:
55. The Applicant must establish a direct causal link between the unfavourable treatment and the attribute of the complainant; in this case, age and race. It is not necessary to establish that the Respondent intended to discriminate, but it is necessary to establish that the grounds, or the reasons for the conduct, were there, and that it was relevant.
56. I refer to several cases that give some clarification and explanation. The first is the Director General of Education v Breen [1982] 2 IR 93, where, at 95, Street CJ stated:
To amount to discriminatory conduct prohibited by the act, the characteristic which will provide the ground must have approximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative affect upon the decision to commit, or the committing, of the act of discrimination. In Waters v The Public Transport Corporation [1991] HCA 49; [1991] 173 CLR 349, the court said, at 400.
The words “on the ground of the status or by reason of the private life of the other person” in the legislation require that the act of the discriminator be actuated by the status or private life of the person alleged to be discriminated against. The words ‘on the ground of or “by reason of” require a causal connection between the act of the discriminator which treats a person unfavourably, and the status of, or private life of the person who is the subject of the act.
58. Further, in the case of IW v The City of Perth [1997] at [1997] HCA 30; 71 ALJR 943, the court said:
All that need be shown is that the alleged discriminator has acted on the ground of whatever the relevant ground is. That involves an objective characterisation of the discriminator’s ground for its conduct for which subjective intention can be relevant, but not decisive.
43.The Discrimination Act must be interpreted in accordance with the rules of statutory construction. The Discrimination Act provides: a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes. [emphasis added].[12] Section 4AA of the Discrimination Act provides that the Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent that it is possible to do so consistently with the objects of the Act.
[12] Discrimination Act 1991 section 8(2)
44.The term ‘because’ is to be given its ordinary meaning: “for the reason that”. In the context of the Discrimination Act, the question to be asked by the Tribunal is: if the applicant possesses a protected attribute, was the unfavourable treatment done for the reason that, or because, the complainant had that particular protected attribute. I have noted the submissions of the respondent that the Tribunal should interpret the Discrimination Act with regard to the High Court’s decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (Barclay). That case relates to adverse action under the Fair Work Act 2009 (Cth).
45.The Fair Work Act 2009 provides at section 346 that a person must not take adverse action against another person because the other person engages in industrial activity.[13] Section 361 of the Fair Work Act sets out a statutory presumption in any application in relation to an allegation that adverse action was taken for a particular reason, and taking action for that reason would constitute a contravention of provisions of the Act including section 346 it is presumed that the action was taken for that reason, unless the person proves otherwise.
[13] Fair Work Act 2009 (Cth) section 346(b)
46.In Barclay the task of a court or tribunal was said to be to determine, on the balance of probabilities, why the employer took adverse action against the employee and to ask whether it was for a prohibited reason, or, reasons which included a prohibited reason. This is a question of fact to be determined by the court or tribunal on the basis of the evidence before it. An employer may give direct evidence of the reason why the adverse action was taken, including positive evidence that the adverse action was not taken for a prohibited reason. If this evidence is accepted as reliable, the tribunal might determine that the reason why the adverse action was taken was not for a prohibited reason. Such direct evidence by the employer must be assessed in the light of all of the evidence before the tribunal. That direct evidence may not be accepted as reliable because of other contradictory evidence given by the employer or because of other objective facts established by the evidence before tribunal.[14]
[14] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at 45
47.In Barclay, the approach of the High Court is set out as follows[15]:
(a)The onus imposed on an employer is not made heavier because an employee affected by adverse action happens to be a union official.
(b)It would be an error to treat the employee’s union position and industrial activity as necessarily being a factor which have must have something to do with the adverse action, or which can never be disassociated from adverse action.
(c)The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of the established evidence.
(d)It is appropriate for an employer to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who has no union involvement.
(e)The statutory presumption in section 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken.
[15] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [60]-[64]
48.The Discrimination Act 1991 (ACT) and the Fair Work Act 2009 (Cth) may have some similarity of expression, and a broad similarity of intention to protect persons from unlawful adverse action. The approach of the High Court in Barclay has some helpful and appropriate concepts in relation to the interpretation of section 8(2) of the Discrimination Act: a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes. However, the two acts are not identical: they have different structures and purposes. The Fair Work Act’s object is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians[16], while the Discrimination Act’s objects are to eliminate discrimination to the greatest extent possible; to promote and protect the right to equality before the law under the Human Rights Act 2004; to encourage the identification and elimination of systemic causes of discrimination; and to promote and facilitate the progressive realisation of equality, as far as reasonably practicable.[17]
[16] Fair Work Act 2009(Cth) section 3
[17] Discrimination Act 1991(ACT) s4
49.Under the Discrimination Act the applicant must prove on the balance of probabilities that the unfavourable treatment was because of the possession of the protected attribute. The test to be applied was set out in Kovac v Australian Croatian Club Limited (Discrimination) [2014] ACAT 41:
90. The Tribunal agrees with the applicant’s submission that the question for the Tribunal is whether the applicant’s political conviction is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment. This conclusion applies the criteria in section 4A of the Discrimination Act to the Nicholls test that was relied upon by the parties in submissions. The Tribunal notes that Purvis provides an overarching question of whether the aggrieved person was treated less favourably ‘because of’ the person's attribute. So in determining whether the respondent has treated the applicant unfavourably because the applicant has an attribute referred to in section 7, the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial. Therefore, if the applicant’s political conviction, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.
50.The question of why an employer treated an employee unfavourably, or subjected them to unfavourable treatment, is a question of fact. This question of fact must be determined in light of the facts established by the evidence before the tribunal. The respondent may give evidence as to their subjective intention. The respondent may give direct evidence as to the reasons why they engaged in the unfavourable treatment of the applicant. It is for the tribunal to determine whether that evidence is sufficient to establish that the unfavourable treatment was not engaged in because the applicant possessed a protected attribute. Therefore, if the applicant’s industrial activity, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.
51.In Bell & De Castella and Rob De Castella v S Smartstart For Kids Limited [2013] ACAT 27 the tribunal recognised:
the difficulty faced by an applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment complained of by the applicant was on the ground of the applicant’s race. This may also be true in relation to the attributes of political conviction and profession. In cases where there is no direct evidence of the discrimination, the applicant may use inferences drawn from the primary facts to support those allegations.
The courts and tribunals have in a number of decisions identified the following considerations in the drawing of inferences:
(i) a causal link can be established by inference from primary facts;
(ii) an inference must be reasonably drawn on the basis of the primary facts;
(iii) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
(iv) a fact relied on as the basis of an inference need not be proved on the balance of probabilities;
(v) it is not enough that the inference is a mere possibility it must be one of probable connection;
(vi) the inference must be a logical one, and not supposition; and
(vii) an inference cannot be made where more probable and innocent explanations are reasonably available on the evidence [at 17-18].
52.Mr Maundrell gave evidence by way of a witness statement and in the hearing, that:
(b)he is employed by Casino Canberra Ltd as the Compliance Manager and In-House Legal Counsel;
(c)he has been admitted as a solicitor since December 1993; and has extensive legal experience both as in-house counsel and as a solicitor;
(d)one of his roles as the Compliance Manager and In-House Legal Counsel is to conduct investigations in relation to issues of employee misconduct;
(e)he was a party to the correspondence between the respondent and the Union in relation to the concerns and queries raised by the Union about the sale of the Casino;
(f)the respondent’s response to the letters from the Union had not addressed their concerns;
(g)he believed that the Union did not understand the nature of the transaction between Casino Canberra Ltd, Aquis Entertainment Limited and Blue Whale Pty Limited, but conceded that the transaction was generally regarded as a sale of the casino;
(h)on 6 August 2019 he was “browsing The Canberra Times website and I noticed an article headed Casino Canberra workers in limbo as sale looms. I then proceeded to click on, and read, the article;”
(i)at the time he read the article he was “unconcerned that Mr Kidman had or may have spoken to The Canberra Times in his capacity as Union delegate or Union member”; and “Appreciated that on a number of prior occasions, Casino Canberra had taken steps to investigate staff, who made public comments bearing on the casino business and were potentially made contrary to Casino Canberra workplace policies”;
(j)the article was not flattering to the respondent;
(k)the article may be adverse to the interests of the respondent and Aquis Entertainment;
(l)on 8 August 2019 he sent the letter to the applicant see ([11]- [13] above);
(m)he read the article and immediately considered that the comments made by the applicant in relation to lack of undertakings was “potentially in breach of the no rumour or gossip behavioural standard”. Mr Maundrell denied that he had searched through the policies looking for particular clauses which might fit the conduct of the applicant;
(n)he had sent the letter and specific questions to the applicant, with a view to forming a preliminary view as to whether or not the applicant had met required standards of behaviour set out in the Employee Handbook or the Code of Conduct.
53.In oral evidence, Mr Maundrell conceded that the correspondence between the respondent and the Union identified concerns held by the Union as to what changes to staffing numbers, terms of employment and outsourcing of jobs undertaken by current casino staff maybe implemented after the sale of the casino. Mr Maundrell gave evidence that no undertakings or assurances had been provided by the respondent, Aquis Entertainment Limited or Blue Whale Pty Ltd, to the Union; that no detailed information about the sale of the casino had been provided to staff; and the respondent had expressed a preference not to negotiate a new Enterprise Agreement.
54.Ms Gallaugher, the CEO of Casino Canberra Ltd was aware that the article would be published, as she had made comments which were quoted in the article but had not discussed the article with Mr Maundrell prior to the publication. Ms Gallaugher had approved his writing the letter to the applicant.
55.The respondent has given evidence as to the subjective intention of Mr Maundrell in writing the letter. In determining what weight to afford to such evidence the Tribunal is entitled to take into consideration the demeanour of the witness, whether there is more than one reason for the writing of the letter and whether contrary inferences are available on the facts.
56.The letter of 8 August 2019 to the applicant was copied to the Union. The questions posed in that letter refer extensively to the correspondence between the respondent and the Union: in this respect the letter seems to be as much a rebuttal of the comments made in The Canberra Times’ article as an explanation or examination of the alleged wrongful conduct of the applicant.
57.In determining what weight should be put upon Mr Maundrell’s evidence; and determining whether a causal link may be inferred I have had regard to the evidence of Mr Maundrell and the contents of the letter.
Was the applicant spreading or supporting rumours in breach of the Casino Canberra Employee Handbook?
58.‘Rumour’ is not defined in the Employee Handbook. The Macquarie Dictionary (7th edition) relevantly defines ‘rumour’ as “1. a story or statement in general circulation without confirmation or certainty as to facts. 2. unconfirmed gossip”. The prohibition on spreading or supporting rumours must be interpreted in the context of the Employee Handbook. This prohibition is found under the heading ‘Your Conduct in the Workplace’. Therefore, read in context, the prohibition on spreading or supporting rumours is primarily directed to conduct that takes place in the workplace, that is in the premises of the casino. The applicant did not give the interview in the workplace, nor did he give the interview as part of his work duties, but as an aspect of his union activities. It is clear from the words of the article in The Canberra Times that the applicant was speaking as a delegate for the Union.
59.The statements attributed to the applicant in The Canberra Times accurately reflect the content of the correspondence between the respondent and the Union. They are neither ‘without certainty as to facts’ nor ‘unconfirmed gossip’. Mr Maundrell was the author of the correspondence from the respondent to the Union and was well aware of the stand taken by the respondent and potential buyer. The explanation given by Mr Maundrell that upon reading The Canberra Times article he immediately formed the view that the applicant had breached the prohibition on spreading rumours is disingenuous, and not accepted by the Tribunal.
Did the statement, “We are not being told anything, we’ve had no information”, misrepresent the correspondence between management and staff?
60.The correspondence between the respondent and the Union was considered in relation to the questions/allegations in the letter from the respondent to the applicant that his statements as reported in The Canberra Times had misrepresented the communication between the parties. In cross examination Mr Maundrell conceded that the response from Blue Whale that they “intend to grow the business” was no more than a “motherhood statement”. He further conceded that the correspondence outlining the response of Blue Whale did not address the Union’s concerns about redundancies, outsourcing, and changes to hours.[18]
[18] Transcript of proceedings 6 March 2020 page 103
61.Later in cross examination Mr Maundrell conceded that Casino Canberra Ltd/Aquis Entertainment Limited had not provided any information or undertakings to the Union or staff in relation to staffing numbers, outsourcing or what changes may be made to employment conditions after the sale of the casino.[19]
[19] Transcript of proceedings 6 March 2020 pages118-120
62.In relation to negotiations or undertakings concerning those issues Mr Maundrell gave evidence that he believed that it was premature for either Blue Whale or the respondent to enter into such negotiations or give any undertakings until the share transfer, or sale of the casino, was complete.
63.The statement “we are not being told anything, we’ve had no information” attributed to the applicant in The Canberra Times article, appears after the following points or information:
(a)Identification of the applicant as a delegate for the hospitality workers union, United Voice.
(b)A statement that neither Aquis nor Blue Whale had provided workers with written assurances about their employment conditions, once the deal was complete.
(c)That the Union had approached Aquis seeking to negotiate the existing enterprise agreement that was due to expire on June 30, and had, at the time of the article, expired.
(d)That the Union had sought guarantees that following the sale there would be no forced redundancies, changes to hours or rosters, or outsourcing of work.
(e)That there was uncertainty among employees in not knowing what future employment conditions would be and that people were “a bit worried.”
64.The statements attributed to the applicant in The Canberra Times article accurately reflect the lack of information and/or negotiations between current management of the respondent and the staff /Union. These statements do not misrepresent the correspondence between management and staff. No information as to what, if any, changes would be made to employment conditions had been provided by the respondent, Aquis Entertainment Limited, or Blue Whale. The respondent provided no evidence that this was not the case. In correspondence in early July 2019, the respondent had indicated that its preference was not to begin negotiations in relation to the enterprise agreement; and, Blue Whale had not provided any undertakings and had stated that it was premature to enter into any detailed negotiations with regard to staffing conditions. Neither current management nor the potential buyer was willing to engage with the Union in any meaningful way.
65.Mr Maundrell’s demeanour was defensive and argumentative. His evidence as to his role in Casino Canberra and in Aquis Entertainment was contradictory and not clear. His evidence that he immediately believed upon reading the article that the applicant’s comments would be in breach of the respondent’s policies is contradicted by the evidence of the applicant, correspondence between the parties and the terms of the policies themselves. I am unable to accept that the sole, or any, motivation for writing the letter was a belief that the applicant’s comments, as reported in The Canberra Times article, were a breach of the Handbook and/or Code of Conduct.
66.I am satisfied on the evidence before me that the respondent has discriminated against the applicant by subjecting him to unfavourable treatment because of his industrial activity. The respondent has conceded that the article was ‘unflattering’ to the casino, and regarded as adverse to the interests of the casino and the parties to the proposed sale of the casino. I am satisfied that the necessary causal link can be established by inference from the evidence before me. The unfavourable treatment occurred because the applicant had engaged in industrial activity.
Remedy
67.Section 53E of the Human Rights Commission Act 2005 provides:
Kinds of orders—unlawful acts under the Discrimination Act
(1) This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider:
(a)the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right;
(b)the inherent dignity of all people and the impact of the discrimination on the person’s dignity;
(c)the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights;
(d)the nature of the discrimination; and
(e)any mitigating factors.
68.The applicant made the following submission in relation to penalty:
although the ultimate consequences for Mr Kidman were relatively minimal, the matter is nonetheless serious. The right to participate in industrial activity, including here the agitation for the protection of existing rights and conditions in uncertain times, is an important economic and political rights of employees. The manner in which Casino Canberra has elected to conduct itself has a chilling effect on worker participation of this kind, and should be appropriately addressed.
This is relevant to section 53E(3)(c) and (d) above.
69.In Kovac v The Australian Croatian Club Limited (No. 2) [2016] ACAT 4 at [76] the tribunal addressed the issue of general damages:
The quantum of general damages
In assessing the damages that should be awarded to the applicant, the Tribunal acknowledges the respondent’s submission that there is no fixed amount or range of damages that might be awarded. Each case must be considered in the light of its own facts and assessment made of the amount which can be fairly regarded as reasonable compensation for the injuries and disabilities which particular applicant has sustained from the unlawful act having regards as far as possible to the general standards prevailing in the community. As commented by the respondent, calculating general damages in discrimination type claims is a difficult exercise and reliance is placed on the ‘good sense’ of the tribunal. As stated by the Anti- Discrimination Tribunal of Tasmania in Power v Bouy:
Ultimately, each matter must be decided on its own facts, but the award must conform to a general pattern established by precedent and can neither be manifestly excessive nor manifestly inadequate. It must fall within a range defined by those two parameters, and provide proper compensation for what has been suffered.
70.The applicant gave evidence that he believed, based on his experience in human resources matters within the casino, that the outcome of any investigation might have serious consequences for him; and that the conduct of the respondent caused him personal distress, stress and sleepless nights. There is no evidence before the Tribunal that the personal distress, stress and sleepless nights amounted to a mental illness or injury, and the applicant concedes that the effect on him was minimal. Nevertheless, the applicant has been subject to unfavourable treatment by the respondent and is entitled to compensation.
Costs
71.The ACT Civil and Administrative Tribunal Act 2008 provides at section 48(2)(b) that the Tribunal may order costs where it considers that a party to an application caused unreasonable delay or obstruction before or while the Tribunal was dealing with the application.
72.The matter came before the Tribunal 10 February 2020. The matter was listed for one day. At the commencement of the hearing the Tribunal raised problems that might occur as a result of the respondent being represented by Mr Maundrell, who was also the only witness for the respondent. The Tribunal determined that it would continue with the hearing and would hear the evidence from the applicant and foreshadowed that the respondent’s evidence would be heard in the afternoon. However, during the course of the morning it became evident that in cross examination Mr Maundrell was having difficulty in separating cross examination from giving evidence and arguing with the applicant.
73.I determined that the difficulties that would be faced by the respondent when Mr Maundrell was giving evidence, being cross examined and representing the respondent during his own evidence would inevitably cause unfairness to both parties, but especially the respondent. The hearing was adjourned to a later date to allow the respondent to engage independent legal counsel.
74.The applicant made the following submissions in application for costs:
16. An adjournment was required because of Casino Canberra’s initial decision to have its sole witness, Mr Maundrell, act as advocate. It became readily apparent on the first day, in particular during Mr Maundrell’s cross examination of Mr Kidman, that this arrangement would cause unfairness to, potentially both parties if it continued while Mr Maundrell gave evidence.
17. Casinos Canberra’s decision was, and remains, unexplained. It evidently had access to legal representation of its choosing. It is highly unorthodox for a material witness to act as advocate in any circumstances - let alone where that person is a lawyer, has previously been a legal practitioner and where questions of credit are plainly relevant.
18. It is of no consequence that Mr Maundrell had been representing the Casino before hearing:
a.no formal indication that he intended to act as advocate was ever made and in the ordinary course another representative would have been expected to attend; and
b.the difficulty did not fully crystallise until the hearing was underway, and only as a result of Mr Maundrell’s particular advocacy style (which is not the subject of criticism).
19. Accordingly, the Union submits that Casino Canberra caused unreasonable delay, and should pay the costs occasioned by this.
75.The matter was raised by the Tribunal early in the hearing on 10 February 2020 the following exchange was recorded:
SENIOR MEMBER LENNARD: I’m seriously concerned. I have to say that once I saw that you had a witness statement I didn’t expect that you would turn up as a representative as well, which is why I raised those concerns this morning. I’ve only had the file since last Thursday anyway.
MR MAUNDRELL: Senior Member, this is a matter the issue of not wanting to incur the external legal costs of a matter which, from our perspective, is very simple and straightforward. We asked a couple of questions. We got an answer. That was the end of the matter. Expended eight days. We really didn’t want to get to 15 to $20,000 worth of legal costs which, inevitably, if you brief anyone with disciplinary material. So, the motivation for it was purely about costs.[20]
[20] Transcript of proceedings 10 February 2020 page 63
76.While the Tribunal commonly deals with unrepresented litigants, who often give evidence in their own matter, it is not usual for those unrepresented litigants to engage in vigorous cross examination of others giving evidence. In this case, each witness had supplied a written witness statement and would have expected to be cross examined in relation to that evidence. An Australian lawyer, with extensive experience, ought to have appreciated the difficulties that would arise should he be giving evidence from the bar table, cross examining witnesses for the other party and be subject to cross examination himself. The assessment of the matter as simple and straightforward demonstrates the problems associated with a party being its own legal adviser. The Tribunal has an obligation to ensure procedural fairness, and I determined, taking into account the advocacy style of Mr Maundrell, that the issues to be decided by the Tribunal depended on an assessment of the evidence given by two witnesses, the credibility of those witnesses and weighing up the evidence of those witnesses in relation to the reason for the conduct of the respondent. I concluded that the requirements of procedural fairness necessitated an adjournment so that the respondent could obtain independent legal advice and representation.
77.I find, pursuant to section 48(2) of the ACAT Act that the respondent has caused unreasonable delay while the Tribunal was dealing with the matter. It is appropriate therefore that the respondent pay the applicant’s costs occasioned by the adjournment.
Orders
1.The respondent has contravened section 10(2) of the Discrimination Act 1991 by subjecting the applicant to unfavourable treatment in his employment because of his industrial activity.
2.The respondent shall display a copy of these orders on all of the employee notice boards located within the Casino premises, for a period of 14 days from receipt of these orders.
3.The respondent shall pay to the applicant general damages in the amount of $4,000, on or before 14 days from the date of these orders.
4.The respondent shall pay to the applicant legal costs in the amount of $4,620, on or before 14 days from the date of these orders.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER:
DT 32/2019
PARTIES, APPLICANT:
Bryan Kidman
PARTIES, RESPONDENT:
Casino Canberra Ltd ACN 051 204 114
COUNSEL APPEARING, APPLICANT
L. Saunders
COUNSEL APPEARING, RESPONDENT
J. Wilson
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Bradley Allen Love Lawyers
TRIBUNAL MEMBERS:
Senior Member J Lennard
DATES OF HEARING:
10 February & 6 March 2020
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