Kurtzer v Department of Recreation, Sport & Racing No. Dcaat-97-108 Judgment No. D3747

[1998] SADC 3945

KURTZER   v   DEPARTMENT OF RECREATION, SPORT & RACING

Equal Opportunity Tribunal
Her Honour Judge Trenorden, Members Bell and Steuart

The Complaint

This complaint has been referred by the Commissioner for Equal Opportunity, pursuant to Section 95(8)(c) of the Equal Opportunity Act 1984. The complaint was made on or about 10 January 1996 and was referred to this Tribunal on 11 June 1997. The notice of complaint filed in this Tribunal alleges that the respondent, the Department of Recreation, Sport and Racing (“the Department”), discriminated against the complainant, Darren William Kurtzer, a person of the Aboriginal race, while he was employed by the Department, on the ground of race, in that the Department subjected Mr Kurtzer to “any other detriment” contrary to Section 52(2)(e) and 51(c) of the Equal Opportunity Act.

The notice of complaint set out a number of particulars of complaint, but Mr Podobnik of counsel, for Mr Kurtzer, described in his opening address the nature of the detriment to which it is alleged the Department subjected Mr Kurtzer, as follows:

• The job specification and reporting relationship of Mr Kurtzer, in the position of Aboriginal Policy and Planning Consultant (“the APPC position”) were altered unilaterally and without consultation with Mr Kurtzer.

• The Department failed to provide Mr Kurtzer with support for a departmental reclassification of the APPC position when it became evident that the position required performance of duties at a higher level than the existing classification of the position.

• The Department failed to adequately support Mr Kurtzer following a major altercation between Mr Kurtzer and another employee.

• The Department carelessly and without consideration for the feelings of Mr Kurtzer, removed Mr Kurtzer’s possessions from the office he had occupied, upon the termination of his employment and thereby caused damage to some of his possessions and treated Mr Kurtzer in a derogatory manner.

.................. The complaint was interestingly described by Mr Podobnik in his opening, in these terms:

“…..  It really is about a job reclassification, a scenario that is somewhat akin to an unfair dismissal, but there is no other forum unfortunately for this matter to be brought.  What we say makes this a particularly unique matter, is that this is affirmative action that seems to have gone wrong.”

......... The relevant provisions of the Sections 51 and 52 of the Equal Opportunity Act are as follows:

“       51. For the purposes of this Act, a person discriminates on the ground of race–

(a)  if he or she treats another person unfavourably by reason of the other person’s race;

…..

(c)  if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s race, or on the basis of a presumed characteristic that is generally imputed to persons of that race.”

“....... 52.  …..

(2)  It is unlawful for an employer to discriminate against an employee on the ground of race–

(a)  in the terms or conditions of employment;

(b)  by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits connected with employment;

(c)  by dismissing the employee;

(d)  by segregating the employee from persons of other races;

or

(e)  by subjecting the employee to any other detriment.”

Also relevant is subsection 6(3) of the Act

“For the purposes of this Act, a person (“the discriminator”) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.”

It is noted that the Equal Opportunity Act binds the Crown : Section 7. The complainant was, at the time of his resignation, in the language of the Public Sector Management Act 1995, a public sector employee employed in the administrative unit known as the Department, of Recreation, Sport and Racing, or Recreation SA.  We have briefly wondered whether the proper respondent in the circumstances is the Crown, instead of the administrative unit, but as it was not argued and, at the end of the day, it matters not, we will not take our wondering any further.

Prior to the hearing and pursuant to an order of the Tribunal, the solicitors for Mr Kurtzer provided, by letter, particulars of the characteristics that appertain generally to persons of Aboriginal race or the presumed characteristics that are generally imputed to persons of Aboriginal race, relied upon for the purposes of Mr Kurtzer’s case of discrimination on the ground of race, against the Department.  Those characteristics or presumed characteristics were expressed to be  the following:

“1)... Perceived incapacity/inexperience on Mr Kurtzer’s part (as viewed by his superiors) in the political arena and in intra departmental matters.  He was not seen as the “model public servant” or a “team player”.

2)A perceived lack of competence on Mr Kurtzer’s part in that he lacked the skills to perform the tasks required of him since he had been part of an affirmative action program within the Department.

3).... A perception by other workers that Mr Kurtzer had been unfairly advanced in the Department due to participation in the affirmative action program.  (Mr Kurtzer was engaged as a cadet and assisted through his tertiary studies.)

In conclusion:

4).... Mr Kurtzer complains that he was seen as a token Aboriginal person in a token position (created to comply with Public Service Staffing policies of 1% (one per cent) Aboriginal employees) and that he was never completely empowered to work constructively for the cause of Aboriginal sport because his competence appears to be always questioned by his superiors.”

Subsection 5(1) of the Equal Opportunity Act defines “race” in the following terms:

“ ‘race’ of a person means the nationality, country of origin, colour or ancestry of the person or of any other person with whom he or she resides or associates:”

Complainant’s Commencement of Employment
.........

In July 1989 Mr Kurtzer commenced a cadetship with the then Department of Recreation and Sport, to study for the Bachelor of Applied Science (Recreation) at the Salisbury Campus of the then South Australian College of Advanced Education.  The cadetship was funded by the Aboriginal Employment Unit of the Department of Personnel and Industrial Relations.

Mr Kurtzer commenced employment with the Department in February 1992 in a temporary capacity at ASO-1 level in the Recreation Trails and Playgrounds Unit of the Department.  In June 1992 Mr Kurtzer’s appointment became permanent and he was promoted to the position of Assistant Project Officer in the Department at ASO-2 level.  The complainant’s promotion was relatively rapid.  In 1993, the then Chief Executive Officer of the Department, Dr Don Swincer, had encouraged Mr Kurtzer to apply for the newly created position of Aboriginal Policy and Planning Consultant, to which he was subsequently appointed following a merit-based selection process.  In May 1993 Mr Kurtzer was appointed to the position of Aboriginal Policy and Planning Consultant at ASO-4 level, reporting directly to the Chief Executive Officer.

Changes to the Position of Aboriginal Policy and Planning Consultant

By May 1993 the Department had undergone many changes, and more were to follow.  From 1986 to 1997, a period of eleven years, the Department had nine different Chief Executive Officers.  It appears that Chief Executive Officers have different management styles, which could and did result with each new Chief Executive Officer, in changes including restructuring, redeployment of personnel, new reporting relationships and different positional responsibilities.   Some two or three months after the appointment of Mr Kurtzer to the APPC position, Dr Swincer was replaced as Chief Executive Officer of the Department by an acting Chief Executive Officer, Mr Neil McGachey.  At this time the Department also ceased to be a separate unit and became a division of the super department of Housing and Urban Development, which meant that Mr McGachey, as head of the division, was responsible to the Chief Executive Officer of the super department, then Mr Michael Lennon.  In about December 1993, possibly following the State Government elections, the Recreation, Sport and Racing division was removed from the super department and once again became a separate department with Mr McGachey as Chief Executive Officer.

Thus, some two months after being appointed to the APPC position, Mr Kurtzer  experienced a change of management style.  Mr McGachey had a different style of management from that of his predecessor Dr Swincer.  He effected a change in reporting relationships across the Department.  As a result of those changes, Mr Kurtzer, in the APPC position, no longer had a direct reporting relationship to the Chief Executive Officer (Mr McGachey), notwithstanding the job specification and position statement.  The relevant legislation entitled Mr McGachey to make such changes.

Mr Kurtzer considered that this was a down-grading of the position he occupied, and subsequently complained.  However, the evidence showed that Mr Kurtzer was not the only employee to lose the direct reporting relationship with the Chief Executive Officer which he had previously enjoyed.  It has occurred to us that the Chief Executive Officer was also “down-graded”, on this argument, when the Department became a division of the super department.  He became accountable to the Chief Executive Officer of that department, instead of directly to the relevant Minister.

We are not satisfied that any of these changes, made by the Chief Executive Officer, even if made unilaterally and without consultation with Mr Kurtzer, amounted to discrimination by the Department on the ground of race.

The Attempt to Reclassify the Aboriginal Policy and Planning Consultant Position

In about mid-1994 Mr Kurtzer considered that his position should be reclassified to a higher level.  He discussed it with others, and with encouragement and some assistance, took steps to prepare an application for reclassification and then to obtain departmental support for his reclassification application.

Mr Kurtzer was not the only employee within the Department seeking reclassification.  As a result of the changes within the Department over several years, a number of people employed in the Department were performing duties at a higher level than their existing classification in their substantive position, and had applied for reclassification.  By mid-1994 there were thirteen outstanding reclassification applications.  It was recognised by the new Chief Executive Officer in September 1994, Mr Michael Scott, that this situation needed addressing, and in October 1994 a sub-committee was established to discuss these, as part of the restructuring of the Department.  The Department was not a large administrative unit.  Approximately 13% of the departmental staff had an outstanding reclassification application.

In addition to changes of Chief Executive Officer at reasonably frequent intervals, the Department was undergoing other changes as a result of numerous changes of Minister over the years. It seems to us that Mr George Forbes adequately summarised the situation as follows (at pages 308-309 of the transcript):

“I think it’s evident that the department was going through far too many changes.  We had far too many CEOs with far too many different ideas, far too many Ministers and it was just a complete and utter hotch-potch of ideas.  Had it been an ideal world Darren’s reclassification would have been looked at long ago, as would have the finance officer, and would have been the human resource officer himself who was looking for one and he was put back and back  -  the actuality of what happens compares to best practice were miles apart.”

We accept that the situation resulted in a detriment to Mr Kurtzer but he was not alone.  It appears that a number of other people in the Department had also had changes thrust upon them without concomitant reclassification of their respective substantive positions.  There is no evidence that Mr Kurtzer was treated unfavourably by the Department on the basis of either his Aboriginality or a characteristic or a presumed characteristic of Aboriginal persons.

Comparison with the Women’s Adviser Position

Much was made by counsel for Mr Kurtzer of the fact that another position namely that of Senior Consultant on Women’s Recreation and Sport (“Women’s Adviser”), had been reclassified upwards, while the APPC position had remained static at ASO-4 level.  It was argued that the position of Women’s Adviser was relevant for comparison purposes.  The Women’s Adviser position had been in existence since 1984, and its occupant provided advice direct to the Minister.  The uncontroverted evidence concerning the reclassification of the position of Women’s Adviser was that an application for reclassification from level ASO-5 to level ASO-6 was supported by the Chief Executive Officer at the time (Mr McGachey), at the direction or suggestion of the then Minister.  In effect, that was an unusual situation and means that a reclassification of the Women’s Adviser position (if it was so reclassified) would not be of assistance to us for the purpose of comparing Mr Kurtzer’s application for reclassification.  The Women’s Adviser position had the support of the Minister at the time. 

It cannot be said that Mr Kurtzer was treated, at the Department’s instigation, less favourably than the incumbent of the position of Women’s Adviser, if that position be appropriate for comparison purposes.

The Reduction in the Aboriginal Content of the Complainant’s Work

Mr Kurtzer alleged that the Department subjected him to a detriment in that it gradually removed him from working for the promotion of, and planning for, Aboriginal sport and recreation, and participation of Aboriginal persons in sport and recreation, which was the reason for the existence of the APPC position, and his own personal interest. 

Perhaps the policies that had led to the creation of the APPC position were no longer embraced by the Government of the day.  It appears that by late 1994 a decision had been made that the programmes and many of the responsibilities of the Aboriginal Unit would be out-sourced to, or become the responsibility of, the South Australian Aboriginal Sport and Recreation Association (“SAASRA”).  These responsibilities included the management of the Aboriginal and Torres Strait Islander Commission (ATSIC) funded Aboriginal program, which until then had been the responsibility of a junior officer who reported to Mr Kurtzer, in the APPC position. 

At about this time SAASRA had taken on the responsibility of developing Aboriginal recreation and sport, and conflicts over respective roles developed between SAASRA and Mr Kurtzer as APPC in the Department.  Mr McGachey spoke of SAASRA having been given pre-eminent funding and of the difficulties in developing a cooperative and complementary relationship, in the interests of the community, between SAASRA and the APPC in the Department.  This evidence suggests that there were forces at work outside the Department that affected Mr Kurtzer’s position. It cannot be said that the Department diminished the Aboriginal content of Mr Kurtzer’s position as he alleged, because it is clear that the functions of the position were being assumed or taken over by another body, namely SAASRA.  The then Minister was keen to see that there was no overlap between the functions of SAASRA and the Department in the area of Aboriginal sport and recreation.  The only rational explanation is that there had been a policy change at a level higher than the Department.  Perhaps Mr Kurtzer eventually realised that this had occurred when he left the Department to become an employee of SAASRA in late 1995.

The Department’s Support of the Complainant  :  The Altercation

On 17 November 1994 there was an altercation in the offices of the Department between Mr Kurtzer and the subordinate officer in the Aboriginal Unit, Mr Bill King.  Allegedly, Mr King assaulted Mr Kurtzer.  The evidence suggests that Mr Kurtzer was acting within his area of responsibility and in the interests of the Department at the time of the alleged assault. 

There was disagreement between Mr Kurtzer and other witnesses as to what occurred following the altercation, but we are satisfied that steps were taken by senior officers of the Department to deal with the situation including a formal investigation.  These steps may or may not have included formal counselling of Mr Kurtzer from his perspective at the time, but measures were taken to deal with the situation, discuss outcomes and possible action with Mr Kurtzer, and to formally reprimand the subordinate officer.  Unfortunately the Human Resources Consultant in the Department at the time, who had the responsibility of preparing a formal reprimand, was not familiar with the appropriate process.  This fact, coupled with the fact that the Human Resources Consultant took several weeks’ recreation leave during which no other officer did any work on the formal reprimand delayed progress on same.  The result was that when the subordinate officer concerned left the Department’s employ some three months after the altercation, no formal reprimand had been issued, and no further action could be taken by the Department. 

We appreciate that this would have been an emotionally difficult time for Mr Kurtzer, and one where he would have reasonably expected to be supported by the Department.  The delay in proceeding with the formal reprimand is most regrettable, but we are satisfied that there were no reasons for the delay other than what could be described as incompetence.  Despite the fact that no formal reprimand issued to the officer concerned, we are not satisfied that Mr Kurtzer was treated any differently from any other officer, by departmental officers, following the altercation.

Derogatory Treatment of the Complainant  :  Removal of his Possessions

In February 1995 the Aboriginal Unit was disbanded and Mr Kurtzer began working with Mr Jim Daly in the production of a manual on recreation and sports planning facilities and design.  At the conclusion of this project Mr Daly successfully sought to have Mr Kurtzer continue working in his unit. 

In late 1994 and 1995 Mr Kurtzer suffered some setbacks in his personal life.  It had also become clear by this time that there was no future in the Department for him in a specifically Aboriginal policy and planning role.  Policy changes beyond the control of the Department had by this time, removed any major role for the Department in this area.  Whether for this reason or as a result of his personal circumstances or both, Mr Kurtzer became unsettled and disillusioned with his role at the Department.  He considered further studies interstate and was accepted into a course in Tasmania, but declined same.  He was considering his future career options.  Previously considered a capable and competent performer, Mr Kurtzer began to have difficulty applying himself to allocated tasks and meeting deadlines.  It appeared that he had lost interest in his work in the Department.  This was proved to be the case as the evidence shows that Mr Kurtzer, while continuing to be employed by the Department, successfully applied for a position with SAASRA.

While the Department was unaware of some of these developments in Mr Kurtzer’s life, it became aware that deadlines in Mr Daly’s unit were not being met because of Mr Kurtzer’s absence from the office and his inability therefore to work on projects to meet the deadlines.  When the situation became critical for the Department, temporary assistance was engaged to do Mr Kurtzer’s work.  To clear a work space for this person, Mr Kurtzer’s office was cleared of Mr Kurtzer’s personal belongings or those items considered to be Mr Kurtzer’s personal belongings and these were moved to a holding location, in Mr Kurtzer’s absence.  We accept that the moving of Mr Kurtzer’s belongings was not undertaken without his knowledge.  We accept that arrangements were made for Mr Kurtzer to attend to collect his belongings but that he failed to attend, whether through a misunderstanding or otherwise.  We accept that Mr Kurtzer’s superior officer, Mr Jim Daly, took reasonable care in the circumstances, with respect to the moving of Mr Kurtzer’s belongings.  We accept the evidence of Mr Daly that he expressed regret to Mr Kurtzer when told of the damage to Mr Kurtzer’s belongings and that his regret was genuine.  We are not able to find that Mr Kurtzer was treated, with respect to the movement of his personal belongings, in a detrimental manner, compared with the manner in which any other departmental employee would have been treated.

Conclusions

We are not able to find that Mr Kurtzer suffered discrimination at the hands of the Department on the ground of race, while an employee of that Department. 

Mr Podobnik described the case in his opening as one of affirmative action having gone wrong.  It was inferred that the position of Aboriginal Policy and Planning Consultant to which Mr Kurtzer was appointed in May 1993 gave Aboriginal people direct access to the Chief Executive Officer of the Department through one of their own  -  an Aboriginal person.  It was suggested that not only had Mr Kurtzer suffered a detriment, but so had Aboriginal people, in that they had, through the Department’s treatment of  Mr Kurtzer, lost something which they had formerly enjoyed, namely direct access for Aboriginal people to the Chief Executive Officer through Mr Kurtzer.  It may be that the argument here is that Aboriginal people in South Australia have suffered discrimination through the discrimination by the Department against Mr Kurtzer.  If that is so, it is not an argument which we have jurisdiction to hear, and in any event we have not been able to find that the Department discriminated against Mr Kurtzer. 

Affirmative action is a policy which the Government of the day may embrace and implement through the public sector agencies.  The Government may change a policy at any time.  We suspect that, with respect to the development of Aboriginal recreation and sport, there was a relevant policy change over the course of Mr Kurtzer’s employment with the Department.  If that occurred, a consequence may have been that the affirmative action programme within the Department with respect to Aboriginal persons, changed or was abandoned.  That is not something with which we have jurisdiction to deal.  It is a political issue.

It is clear that notwithstanding any policy changes that affected the Department, Mr Kurtzer, in conjunction with other officers of the Department, suffered as a result of what can perhaps be described as frequently changing management methods and restructures in the Department.  Nine Chief Executive Officers of a Department within a period of eleven years with accompanying changes of management methods and structure can hardly be conducive to job satisfaction on the part of employees, or stability and harmony.  It is not beyond reason that reasonably frequent changes could lead to disillusionment amongst ambitious and conscientious employees and particularly those for whom a change in management structure resulted in a change in reporting relationship that could be perceived as a diminution in status.  Mr Kurtzer had not considered himself sufficiently experienced to apply for the new position of APPC.  It was two levels above his then substantive position.  He was persuaded to apply.  He won the position.  Two months later there was a change and his position appeared to have diminished in status.  Twelve months later his role and responsibilities began to be siphoned off to SAASRA.  Thus began Mr Kurtzer’s disillusionment. It is unfortunate and perhaps a consequence of poor management, but it is not discrimination on the ground of race.

The complaint is dismissed.