MALLARD and CITY OF FREMANTLE
[2018] WASAT 44
•11 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: MALLARD and CITY OF FREMANTLE [2018] WASAT 44
MEMBER: SENIOR MEMBER J MANSVELD
HEARD: 6 FEBRUARY 2018
DELIVERED : 11 JUNE 2018
FILE NO/S: EOA 11 of 2017
BETWEEN: MURRAY MALLARD
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Equal opportunity - Unlawful discrimination on grounds of race - Direct discrimination - Goods, services and facilities - Inference - Jones v Dunkel - Complaint dismissed
Legislation:
Equal Opportunity Act 1984 (WA), s 3, s 36(1), s 46, s 46(c), s 90(2), s 161
State Administrative Tribunal Act 2004 (WA), s 32
Result:
The application is dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms J McLean |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Fremantle Community Legal Centre |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
Jones v Dunkel (1959) 101 CLR 298
Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Medical Board of Australia and Panegyres [2017] WASAT 146
The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act 1984 (WA) (EO Act).
On 30 August 2016, Mr Murray Mallard (Mr Mallard) lodged a complaint with the Equal Opportunity Commission of Western Australia (EOC) alleging unlawful discrimination on the ground of race in the area of goods, services and facilities. Mr Mallard's complaint was lodged against the City of Fremantle (respondent). The unlawful discrimination was alleged to have occurred when Mr Mallard had used the respondent's public library (library).
On 15 September 2016 Mr Mallard advised the EOC that the matter had been resolved and that he wanted to withdraw the complaint. The EOC subsequently closed the complaint.
On 7 November 2016 Mr Mallard lodged a fresh complaint against the respondent alleging unlawful discrimination on the grounds of race and racial harassment in the area of goods, services and facilities. The complaint of racial harassment was not accepted by the EOC on the basis that it did not fall within the jurisdiction of the EO Act.
On 29 November 2016 Mr Mallard applied to the EOC to have the complaint made on 30 August 2016 reopened and this was granted by the EOC on 9 January 2017.
On 10 April 2017, the EOC dismissed the complaint. On the same day Mr Mallard gave the EOC written notice pursuant to s 90(2) of the EO Act requiring the Commissioner for Equal Opportunity to refer his complaint to this Tribunal.
On 20 June 2017, the referral from the EOC was filed with the Tribunal.
The complaint was referred to mediation in the Tribunal on 2 August 2017. Mediation was not successful and the matter proceeded to a final hearing on 6 February 2018.
Mr Mallard attended the hearing in person. The respondent was represented by counsel.
In addition to the material filed by Mr Mallard and the respondent the Tribunal also relied on the referral material filed by the EOC (EOC documents).
The EO Act
Section 4 defines race as follows:
race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act[.]
Section 36(1) provides that:
Racial discrimination
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
…
Section 46 outlines:
Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 161 outlines:
Vicarious liability
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
An outline of the complaint
On 14 February 2017, the EOC provided the respondent with what was described as the full details of Mr Mallard's complaint.
The document which is titled 'Statement of Circumstances and Allegations' relevantly states as follows:
1.I am an Indigenous Australian.
2.I borrow DVDs from Fremantle City Library. I also go to use the Internet.
3.I am being unfairly stereotyped by a staff member named Deborah [Deborah Lawrence, library assistant].
4.Deborah has accused me of trying to steal DVD's. Ever since then she has been stereotyping me and makes offensive comments and accuses me of trying to steal DVD's every time I look at DVD's to borrow and using computers in the library.
5.I can't remember all of the dates, but on the following dates Deborah treated me unfairly:
a)Around June/July 2016 I borrowed DVD's from Fremantle Library.
Deborah walked past me when I was looking at DVD's. She said, 'What's that guy standing there staring at. He is probably trying to steal'. She kept walking. She went to the counter and said it again to other staff this time [Complaint 1]
b)On 30 August 2016 I was looking at DVD's to borrow. Deborah was at the counter. She said to another staff member, 'What's that guy standing there staring at. He is probably trying to steal'. [Complaint 2]
c)The latest incident happened on 1 November 2016 when I entered the library and Deborah was leaving the same way I came in. She walked past me and said. 'What's that guy staring at. He has probably trying to steal'. [Complaint 3]
6.Other staff members have witnessed her saying things to me, but none of them said anything or made a complaint about the way I was being treated.
7.There are cameras in the library. If I had stolen something the police would have caught me and charged me by now.
8.I am being defamed and being accused of something I wasn't even doing. I feel like I am being treated like a thief every time Deborah is on duty.
9.I lodged 5 complaints with the Fremantle City Council. Helen Sarcich [Manager of Service and Information] phoned me after I lodged the 3rd complaint and asked me to come and talk about it. Helen said she believed me and said she didn't want people to feel uncomfortable in the library because of Deborah. I felt comfortable and the matter was resolved.
10.The next time I went back it kept happening and I lodged 2 more complaints.
11.Even though I lodged the complaints with the Fremantle City Council about Deborah and met with someone named Helen to discuss my concerns, it is still happening. Deborah still makes offensive comments that are racist and stereotypical.
12.About 3 times Deborah has walked past me and said that guy is always complaining about me and no-one is taking notice of it. As of now she refuses to serve me when I am waiting to be served. She turns her back on me. [Complaint 4]
13.On Monday 6 February 2017 I was waiting to be served and Deborah turned her back on me and refused to serve me. I heard her say, 'I am not serving him'. She ignored me until another staff member served me. Deborah was right next to me. The other staff member wasn't at the Customer Service desk, but Deborah was and still didn't serve me. [Complaint 5]
14.I am always being accused of being a thief because I am an Indigenous Australian.
15.I want the Fremantle City Council and Deborah to acknowledge that how she is behaving is wrong and I can't understand why she is still behaving this way after I have lodged complaints about it and even met with Helen to discuss the matter.
16.Either they don't believe me or Deborah is lying to them or are not taking notice of me.
17.It is been happening all year. All I ask is for Deborah to leave me alone, stop defaming me and my reputation other staff members accusing of something I am not doing or haven't done.
Mr Mallard's case
In addition to the 'Statement of Circumstances and Allegations' and other material filed with the EOC documents, Mr Mallard filed the Applicant's Statement of Issues, Facts and Contentions dated 26 August 2017 (ASIFC).
The Tribunal accepted the factual material set out in the various documents filed by Mr Mallard with the EOC and the Tribunal as constituting his evidence in chief.
In his ASIFC Mr Mallard references the period from January 2016 to July 2017 as the time when he was accused of stealing when he went to the library. This period sits in part outside of the time of the specific allegations made by Mr Mallard to the EOC and which form the basis of the referral to the Tribunal.
At the hearing the Tribunal reminded Mr Mallard and the respondent that it could only consider the allegations/complaint which the EOC had considered and dismissed and subsequently referred to the Tribunal. However they were informed that other material would be referred to when establishing the context and history of the complaints Mr Mallard made to the EOC (Winter and Commissioner of Western Australian Police Service [2006] WASAT 87).
Mr Mallard's complaint to the EOC is set out in the 'Statement of Circumstances and Allegations'.
Although it is difficult to comprehensively reconcile the 'Statement of Circumstances and Allegations' with the ASIFC, in giving some latitude to Mr Mallard it seems that the following information can be added.
Mr Mallard refers to a letter addressed to him from Ms Julie Caddy, Manager Library and Information Service dated 28 January 2016 (January 2016 letter).
Mr Mallard lodged a 'Feedback Form' with the respondent on 25 January 2016. In the form he alleged that in the previous month Ms Deborah Lawrence had accused him of trying to steal a DVD, the case of which he had opened to ensure the DVD was inside. On 23 January, Ms Lawrence had again allegedly accused him of probably trying to steal a DVD.
These incidents were not specifically included in the complaint Mr Mallard made to the EOC. However, the January 2016 letter which was a response to the 'Feedback Form' of 25 January 2016, provides a context for the claim made by Mr Mallard to the EOC.
Relevantly the January 2016 letter states:
Thank you for your feedback about interaction with a library staff member.
Staff are advising customers of the reason for recent changes to DVD security arrangements. Theft of DVDs is being cited as a reason, however this advice is in no way directed at individual customers.
I apologise for any offence caused to you while using the library and assure you that all customers are welcome to use the library and its resources.
In his ASIFC, Mr Mallard states this about the January 2016 letter and the circumstances he says surrounded it:
[I] received a letter in the post about this and what was said in the letter was different to what Julie Caddy has said. Whoever sent the letter said Deborah had told them she thought I stole DVDs that day and said Deborah was entitled to confront me about it. An individual customer was target[ed] that day Deborah targeted me. She accused [me] of stealing[.] [I] was looking at DVDs to borrow[.] [I] was looking at DVDs that day. Other customers borrowed DVDs that day before I did [.] Ms Lawrence and other Librarians did not inform them of security changes to DVDs[.] [I] was the only one spoken to that day[.]
In his oral evidence Mr Mallard stated that he was advised in early January 2016 by Ms Lawrence of the new security arrangement regarding the borrowing of DVDs. According to Mr Mallard, the new security measures involved the DVD cases being locked so that people could not steal the DVDs. Mr Mallard alleges that Ms Lawrence's tone at the time was sarcastic.
Mr Mallard states that he did not see other library customers who were borrowing DVDs being approached and advised as he was of the new security arrangements.
Mr Mallard states he knew Ms Lawrence by sight from 'the first time she accused me of stealing' but only by name after he heard her mention her name 'Deborah' to someone she was speaking to on the telephone (ts 14-15, 6 February 2018). He has never spoken directly with Ms Lawrence.
In his ASIFC Mr Mallard makes reference to three other library staff who would allegedly laugh together with Ms Lawrence when she accused him of stealing DVDs and one of the other staff is reported to have said 'Don't be racist Deborah'. He says that subsequently two of the three other library staff also accused him of stealing DVDs but this does not form part of Mr Mallard's complaint to the EOC.
Mr Mallard says that he at first believed he was being accused of stealing by Ms Lawrence because he had a backpack with him. However she continued with her accusations even when he did not bring the backpack. He submits her reaction to him could therefore have only have been because of his Aboriginality.
Mr Mallard met with Ms Helen Sarcich on 1 September 2016 after what he states was his third complaint to the respondent. He states that he told her that Ms Lawrence was always accusing him of stealing when he was in the library. He says he told Ms Sarcich that he is colour blind and therefore it can take him some time to peruse the DVDs.
Mr Mallard states that Ms Sarcich told him she did not want anyone to feel uncomfortable when in the library, to which Mr Mallard responded, that he did not feel comfortable when Ms Lawrence was around. When Mr Mallard asked what would happen if Ms Lawrence denied the allegations, Ms Sarcich is alleged to have responded that she would believe him.
After the meeting with Ms Sarcich and on the basis that he considered the matter resolved, Mr Mallard stated he withdrew the complaint to the EOC on 15 September 2016. However Mr Mallard alleges the behaviour of Ms Lawrence did not change and he subsequently lodged more complaints with the respondent. This culminated in Mr Mallard seeking to have his original complaint with the EOC reopened which was successful.
In regard to Complaint 1, Mr Mallard stated in his oral evidence that he was in the library area where DVDs were stored on a shelf (DVD area). Ms Lawrence approached from the children's section of the library and made her statement of 'What's that guy standing there staring at. He is probably trying to steal', as she walked past him and repeated it when she reached the library counter (counter). Mr Mallard alleges Ms Lawrence must have directed the statement at him because there was not anyone standing next to him. He also says that Ms Lawrence must have spoken loudly from the counter because he could hear her when she repeated the statement.
In regard to Complaint 2, Mr Mallard stated in his oral evidence that he was in the DVD area which is about 10 meters from the counter. Ms Lawrence was at the counter. Mr Mallard alleges Ms Lawrence made the statement to other library staff 'What's that guy standing there staring at. He is probably trying to steal'. Mr Mallard says that he did not react to the statement. He borrowed some DVDs and then left the library. He used the self-service machine on this occasion which he says could be used when the DVD cases are not locked. When the DVD cases are locked, borrowing has to occur with library staff who will unlock the cases.
In regard to Complaint 3, Mr Mallard stated in his oral evidence that he had entered the library through the main entrance and that Ms Lawrence appeared to be on her way out of the library. Mr Mallard alleges that Ms Lawrence 'just walked past me and said I know she said something to me to make trouble' (ts 13, 6 February 2018).
In regard to Complaint 4, Mr Mallard stated in his oral evidence that he cannot recall exactly when those incidents occurred but that Ms Lawrence did make the statements about him complaining about her and that it occurred a time after he had made one or two complaints.
Mr Mallard was not specifically cross-examined on Complaint 5.
In his ASIFC Mr Mallard refers to a report that arose from an investigation into his complaints by the respondent (WISE Report). He states that Ms Lawrence, who was interviewed as part of that investigation, did not say that she had seen him steal in the library nor did any of the other library staff who were interviewed. Mr Mallard states that neither the police nor security staff were ever called to approach him about stealing or sought to check his bag.
Mr Mallard says that the WISE Report mentions 11 library staff being interviewed and that none of them heard Ms Lawrence making the statements to him accusing him of stealing. He says he finds it hard to believe that the library staff did not hear Ms Lawrence because 'she always said it to other librarians'. Mr Mallard conjectures that 'some people do lie to protect a colleague they look after their own it happens a lot in organisations' (ASIFC page 2 and 5).
Mr Mallard wondered why he wasn't interviewed for the WISE Report.
Mr Mallard alleges that Ms Lawrence has lied to protect herself, knowing it would be his word against hers.
Mr Mallard rejects the suggestion by counsel for the respondent that he may have misunderstood Ms Lawrence's action of 'looking around to see what's happening in the library which is part of her job' (ts 19, 6 February 2018).
Mr Mallard also rejects the contention of counsel for the respondent that because his complaints were couched in the same terms, namely that Ms Lawrence's alleged statements were exactly the same in all of the complaints, this suggests the complaints did not happen. He states that Ms Lawrence continued to make the same comments.
Mr Mallard submits:
[I] didn't decide to appeal and just for the sake of it, just because I wanted to or I had the right to. Deborah still continued to accuse me of stealing in the library all of 2016 into 2017. That was the reason why I appealed the decision with the State Administrative Tribunal. My decision to appeal wasn't because of pride or stubbornness it was because Deborah was still stereotyping me in the library, accusing me of stealing and still wouldn't leave me alone. …
I am not mistaken or misunderstood I know what I heard and know what I saw in the library[.]
(ASIFC page 7 and 8)
Mr Mallard states that he has suffered stress as a result of the behaviours of Ms Lawrence. He takes medication for high blood pressure. A hospital doctor has diagnosed him with migraines which the doctor said are stress-related.
Mr Mallard says that from August 2017 he no longer attends the library and has obtained membership of another local council library.
Mr Mallard states that the only remedy he is seeking from the respondent is an apology.
The respondent's case
The respondent filed a Statement of Issues, Facts and Contentions (RSIFC) and a bundle of documents which includes the WISE Report.
The respondent called two witnesses, Ms Lawrence and Ms Sarcich for whom witness statements were filed.
Included with Ms Sarcich's witness statement are a number of documents. They are the January 2016 letter, a number of 'Feedback Forms' lodged by Mr Mallard with the respondent, a file note made by Ms Sarcich on 6 September 2016 after meeting with Mr Mallard on 1 September 2016 and Ms Lawrence and Ms Caddy on 5 September 2016 (2016 file note) and an 'Incident Report Form' dated 7 November 2016 detailing an incident between Mr Mallard and Ms Fiona Faulds, a library staff member (2016 Incident Report).
Ms Sarcich
Ms Sarcich was previously employed by the respondent as Manager of Service and Information. She held that position for over two years.
Mr Sarcich states that she is not aware of any complaints being raised against Ms Lawrence other than those made by Mr Mallard.
Ms Sarcich states the 'Feedback Forms' were received from Mr Mallard on 25 January 2016, 22 August 2016, 31 August 2016, 7 November 2016, 14 November 2016, 19 March 2017, 6 July 2017 and 3 August 2017. A letter from Mr Mallard was received on 12 December 2016 which states that Ms Lawrence made an offensive comment to him in the library on 7 December 2016 and that he was not making any further complaints because it was a waste of his time.
Ms Sarcich states that she met with Mr Mallard on 1 September 2016 and that she made the contemporaneous 2016 file note which states in relation to that meeting:
[O]n the 1st September I met with Mr Mallard at the Administration Building. I asked him about the two incidences [contained in the Feedback Form of 22 August 2016] and asked him to provide me with further detail about what happened. I specifically asked him:
•Can you please tell me what the offensive comments were? He replied that Deborah had said 'what's he doing, probably trying to steal', that when he leaves without borrowing DVD's Deborah makes comments that he is trying to steal DVD's. He then told me that on Tuesday (30th September) when he was on the public computers Deborah was standing behind him saying to another staff member 'this guy's always complaining about me', and that another library staff member who had short hair told Deborah to stop saying that about him.
•I explained to him that I was aware that he had made a complaint against Deborah in January 2016 and had alleged that she had accused him of trying to steal DVD's. I asked him if there had been any incidences between January and August, and he said that she (Deborah) was ok for a month and a half but then she started making comments about him trying to steal DVD's again.
•He identified Deborah as being the staff member with the red hair.
•I explained to him that it was important to me that all customers including him feel comfortable when using the library; he said that he did not feel comfortable.
•I explained to him the making offensive comments to customers was unacceptable and that racism would not be tolerated from staff, he replied he believes that Deborah believes he is trying to steal DVD's but that he is not sure that it is racism.
•I explained that I would be conducting an investigation into the allegations, and I had asked to view our CCTV footage to ascertain if they had spoken, he appeared uncomfortable when I mentioned this.
•I explained that as this was a HR matter I would not be able to discuss the outcome with him due to privacy but that I would conduct a thorough investigation, I asked if he was happy with this course of action and he indicated yes he was, and we concluded our meeting.
The 2016 file note shows that Ms Sarcich and Ms Julie Caddy met with Ms Lawrence on 5 September 2016. The notes from that meeting state:
•I explained that the City had received a complaint from a customer regarding her conduct and the nature of the complaint.
•I explained that I had met with the customer and shared the information he had provided to me with Deborah.
•I provided Deborah with copies of some CCTV footage of the customer and asked if she recognised him, she said that she thought that she did.
•Deborah was visibly upset and explained to me that she had no knowledge of the customer and had had no contact with him that she can recall. She explained that earlier in the year there have been a complaint from the customer about her, and she believed that he may have taken offence to her explaining why the new DVD security measures had been put in place, but that she had explained it in the same way to other customers.
•Deborah said that it upset her to receive a complaint such as this as she prides herself on her high level of customer services, that she was not a racist person and sought always to be inclusive of customers.
•Deborah said that she does not recall speaking to him on either 19th of August 2016 or 20th August 2016, that she was not rostered on the front counter on the 19th but could have been called out to help and that she was at work on the 20th but had not spoken to him.
•Deborah expressed that she was feeling victimised by the customer as she had not acted in the way that he had alleged and that she was upset that this would have to go on her file when she had not done this.
•I explained to her that I had met with him and there was (sic) were some inconsistencies in what he told me that made me unsure, that it is a 'he said she said' situation so it was impossible to know if the incidences had occurred or not. I explained that I want to ensure that customers were comfortable being in the library, but also that staff feel safe working in the environment.
•I explained to Deborah that I believe she has always upheld the highest level of customer service in her role in the library, and also that I had difficulty believing that if another staff member had overheard her saying such things to the customer, that they would not have told Julie or another staff member about the incidence.
•I explained that I wanted to make sure that we had arrangements in place that when Mr Mallard came in he was comfortable in the library but also that as much as possible Deborah did not have to be in the customer service area when he was. We agreed that Julie and Deborah would work out a plan for that when the customer was in the library to ensure Deborah was not around him as much as possible.
•I explained that I would make a file note of the investigation and that she would be provided with a copy of this, as well as a copy being placed on her HR file.
Ms Sarcich concluded the 2016 file note as follows:
After this meeting I was informed that there was no CCTV footage available for those dates that showed interactions between the customer and Deborah, however it must be noted that the CCTV coverage of where the incidences are alleged to have taken place is very limited.
Deborah and Julie advised that they had agreed to ask for help from the library team to identify when the customer was in the library and advise either Deborah or a team leader when he was so that Deborah could be redeployed to another area of the library as much as possible. Deborah will also keep a diary of when she is advised that he is in the library and when she notices him in the library and if she has to interact with him.
In respect to the CCTV footage, Ms Sarcich stated in her oral evidence that she had referred that aspect to the Team Leader of Community Safety. She was told there was a 'visual' of Ms Lawrence and Mr Mallard however no interaction between the two was observed (ts 32, 6 February 2018).
Ms Sarcich states that on considering each of the 'Feedback Forms' and the nature of the complaints made by Mr Mallard, it was apparent that there was consistency in Mr Mallard's choice of words to describe what he alleged Ms Lawrence had said to him each time. This concerned her and given her role as manager of the department she recognised that a process was required to eliminate any possibility of contact.
Between 5 September 2016 and 21 December 2016, a system was implemented to reduce the opportunity for interaction between Mr Mallard and Ms Lawrence. When Mr Mallard attended the library, Ms Lawrence would come away from the counter and go to the private work area that is away from the public. This system ceased as Ms Lawrence became stressed and took a period of leave.
Ms Sarcich noted that during this period, Mr Mallard continued to file 'Feedback Forms' with the respondent and in addition there was an incident on 7 November 2016 contained in the 2016 Incident Report.
The 2016 Incident Report is a statement by Ms Faulds, a library staff member. It reads:
Murray Mallard was walking to Library Service desk, Deb was at the return shelf, I was walking past. I said to Deb, I will do the desk and walked around behind the desk. Deb went out to the work room. I asked Mr Mallard if the DVD's he had were returns, as we often ask customers at the returns desk, he said to me 'yes they are returns, so you won't accuse me of stealing them'. I have had many dealings with Mr Mallard over the years at the Service Desk, and this is the first time he has ever spoken to me.
Ms Lawrence
Ms Lawrence stated that she has been working with the respondent since 1990 as a library assistant. She says that in the years she has acted in her role she has always conducted herself respectfully to all customers, irrespective of their background.
Ms Lawrence stated that her usual day consists of her delivering front of house library customer services, and undertaking a range of library administrative duties. In her oral evidence Ms Lawrence stated that the nature of her work is 'very fluid' and that she moves around the library in her tasks (ts 25, 6 February 2018).
Ms Lawrence stated that she does not recall any particular interaction with Mr Mallard. She says that she may have over the years interacted with him because he had a library card and was a customer at the library. She did not know him in any way except as a customer of the library.
Ms Lawrence stated that she does not recall any particular occasion where she personally attended to Mr Mallard while he was in the library.
During the meeting with Ms Caddy and Ms Sarcich on 5 September 2016, Ms Lawrence stated she was shown CCTV footage. She says that she did not recognise Mr Mallard or recall any interactions with him. As far as she was aware she had not spoken to Mr Mallard and did not know what he looked like until he was pointed out on the CCTV. That was the first time she had heard Mr Mallard's name in the context of the complaint against her that had been made previously.
Ms Lawrence did not recall serving Mr Mallard at the counter.
When questioned by Mr Mallard on his allegation that the three times she refused to serve him in the library (Complaint 4) was inconsistent with her assertion that she showed the same level of respect for all customers, Ms Lawrence said:
… I have no recollection of refusing to serve [Mr Mallard] in the library. There were incidences, but I remember I was busy serving another person. I said I would get someone to help [Mr Mallard]. But that's as far as it went. And I did that for everybody.
(ts 23, 6 February 2018)
Ms Lawrence stated that she has never accused Mr Mallard of stealing anything and never confronted him in any way. Ms Lawrence says she is not a person who would accuse anyone of stealing.
Ms Lawrence states that on 1 November 2016 (Complaint 3) she was working on the counter when she saw Mr Mallard come into the library and go to the DVD area. She asked a staff member to cover and went into the workroom. She says she did not have any interactions with Mr Mallard and denied saying the alleged words to him.
This was the system in place for a period after the complaints were first made by Mr Mallard. If Ms Lawrence was in the public area of the library when Mr Mallard arrived, she would remove herself and go into the workroom. At times she would have been warned by another staff member that Mr Mallard had entered the library.
Ms Lawrence stated that on 6 February 2017 (Complaint 5) she worked in the workroom all day (out of public sight) and only went out to assist during busy periods. She said she was not called out of the workroom during the afternoon. Ms Lawrence stated that she does not recall having any interactions with Mr Mallard and does not recall seeing him that day. She denied making the alleged comments to Mr Mallard and says she was never in a position to serve him or refuse to serve him on that day.
In respect to this incident, Ms Lawrence said in her oral evidence that she does not recall seeing Mr Mallard on that day.
In her oral evidence Ms Lawrence said that when she was in the workroom the only people who could see her were those staff also in the workroom.
Ms Lawrence stated that the stress of the allegations made, the changes in her job and the constant fear of interaction with Mr Mallard have impacted on her to the point where she has had to take time off work for stress leave.
Ms Lawrence stated that the allegations made by Mr Mallard were false and that the consequences of those allegations have been detrimental to her health and well-being. They have cast a shadow on her long history of professionalism and have caused her to lack confidence in her workplace.
The 'Feedback Forms'
The Tribunal has before it eight 'Feedback Forms' lodged by Mr Mallard with the respondent. Some of those fall outside of the period of the complaints as described on the 'Statement of Circumstances and Allegations'. The 'Feedback Forms' are as follows.
25 January 2016
I would like to complain about a library staff member named Deborah. A month ago I borrowed some dvds. I opened to check if the disk was in there Deborah accused me of trying to steal the item. On Saturday, January 23 I was in the Library looking at dvds. Deborah made an offensive comment. She said I was probably trying to steal them. She needs to stop stereotyping me when I come into the library.
22 August 2016
I am an indigenous Australian. On Friday August 19 2016 I was looking at DVDs in the library Deborah walked past me she made an offensive comment and accused me of trying to steal them. On Saturday August 20 2016 I returned some DVDs I had borrowed from the library. I was looking at more DVDs to take out as I was leaving the library Deborah made an offensive comment and accused me of trying to steal DVDs. I don't have a criminal record I have no criminal convictions. I work at the Perth Royal Show every year I need police clearance for that job. I am not going to get a criminal record and risks (sic) losing my job for stealing DVDs at the library which aren't even worth stealing. Even if I wanted to steal DVDs I couldn't anyway because there are cameras in the library. Deborah needs to grow up and stop being racist. I have already lodged a complaint about Deborah and her racist behaviour. She has been spoken to why is she still doing it if she is allowed to get away with it she is just going to keep doing it and thinks that she can keep doing it. What Deborah is doing is wrong it can't continue if this doesn't stop I'm going to take the matter further … Everyone else looks at DVDs in the library but when an Aboriginal does they are stereotyped and accused of stealing. …
31 August 2016
A complaint about a staff member in the library named Deborah. Every time I look at DVDs to borrow when Deborah is on duty she makes offensive comments and accuses me of trying to steal. I have already lodged two complaints about Deborah but her behaviour hasn't stopped she is still doing it …
7 November 2016
This is a complaint about a staff member in the library named Deborah. I have spoken to Helen about Deborah and already lodged 3 complaints. Her attitude and behaviour hasn't change (sic) she still won't leave me alone. I have lodge (sic) three complaints and have spoken to someone named Helen about Deborah but her stereotypical behaviour and attitude hasn't changed. She is making offensive, stereotypical comments when I'm looking at DVDs in the Library. She accuses me of stealing. She defames me by making comments to other staff members about me. She always says 'that guy looks like he's going to steal standing there like that. He always complains about me and no one is taking notice of it'. …
15 November 2016
A staff member in the library named Deborah is always making offensive comments to me and about me when I am in the Library. I was in the library today she made an offensive comment to me today accusing me of trying to steal. I have lodged 4 complaints but it still hasn't stopped. I will just keep complaining until it stops. …
9 March 2017
A library staff member named Deborah refuses to serve me when I am in the library. She has done it several times. I hear [her] say to other staff members I'm not serving him. She doesn't serve me because it's her way of getting revenge for me complaining about her. It is illegal to refuse to serve a customer. ...
6 July 2017
Deborah is still stereotyping me and making offensive comments and accusing me of trying to steal when I am in the library. Two blonde ladies are also making the same comments about me when I am in the library. Deborah instigated it she is a bad influence on other library staff members she has two other staff members stereotyping me and accusing me of trying to steal when I am in the library. …
3 August 2017
I have had my library card cancelled today … I'm not coming to the library anymore I am sick of being stereotyped and being accused of stealing all last year and all this year. … I won't be stereotyped and accused of stealing. I'm sick of hearing Deborah's comments about me and the comments the 2 blonde ladies are making about me.
The WISE Report
On 21 February 2017 the respondent contracted WISE Workplace to conduct an independent investigation into the complaint made by Mr Mallard to the EOC. The incidents asked to be investigated are not wholly consistent with the 'Statement of Circumstances and Allegations' dated 14 February 2017, forwarded by the EOC to the respondent particularly in respect to Complaints 2 and 4.
The WISE Report shows that nine library staff were interviewed face to face and three staff by telephone. The staff interviewed face to face included Ms Lawrence and Ms Sarcich.
Relevantly the WISE Report states as follows:
Examining library access and borrowing records. According to Ms Sarcich['s] review, Mr Mallard was in the library during June/July 2016, 20 August 2016, 1 November 2016 and 6 February 2017.
(WISE Report para 5.2c.)
In respect to Complaint 1
None of Ms Lawrence's co-workers heard her say the alleged words to Mr Mallard (WISE Report para 5.43).
In respect to Complaint 2
Mr Mallard did not specifically refer to the incident in this complaint in the Feedback Form lodged by him on 31 August 2016 (WISE Report para 6.17).
The details of the incident alleged to have occurred on 30 August 2016 are different on the 'Statement of Circumstances and Allegations' and what Mr Mallard is alleged to have told Ms Sarcich as evidenced by her 2016 file note (WISE Report para 6.21).
None of Ms Lawrence's co-workers heard her say the alleged words to Mr Mallard (WISE Report para 6.25).
Examination of the location of the service desk in relation to where the DVDs are stored means that it would have been difficult to see precisely what customers are doing in the DVD area as it is about 10 meters away. Given this distance, Ms Lawrence would have had to have spoken very loudly for Mr Mallard to hear and it is likely that her co-workers would have heard her (WISE Report para 6.26).
In respect to Complaint 3
The diary kept by Ms Lawrence to record when she noticed Mr Mallard was in the library or when she was advised by co-workers covered the period from 5 September 2016 to 3 January 2017. The particular diary entry notes that when Mr Mallard entered the library Ms Lawrence was at the counter. On seeing Mr Mallard, Ms Lawrence went into the workroom (WISE Report para 7.23).
In respect to Complaint 4
None of Ms Lawrence's co-workers who were interviewed had received any complaints from Mr Mallard about Ms Lawrence or had heard Ms Lawrence discuss and complain about Mallard's complaints (WISE Report para 8.13).
In respect to Complaint 5
Ms Lawrence did assist on the service desk during busy periods on 6 February 2017. She was serving another customer at the counter where Mr Mallard was standing in line (WISE Report para 9.11).
In respect of the new security system for managing DVDs
Ms Lawrence said that when the new system was first implemented she had advised a few customers that the reason for the change was that some DVDs had been stolen. Following from Mr Mallard's first complaint she had modified her message to advise customers of the new locking system. Mr Lawrence did not direct any of these explanations to Mr Mallard (WISE Report para 10.4).
In respect to Ms Sarcich and her opinion of library staff
Ms Sarcich said that Ms Lawrence's co-workers would have spoken to her if she had spoken to Mr Mallard as he alleged, so as to prevent escalation of that behaviour. The co-workers would have reported the behaviour to the Manager (WISE Report para 5.3).
The closing submission
Counsel for the respondent submits that Mr Mallard has not proven his case to the required standard.
In Complaints 1 and 2 where it is alleged that Ms Lawrence accused Mr Mallard of trying to steal DVDs when she was at the counter and he was in the DVD area, it is contended that Ms Lawrence would have had to have raised her voice loudly, such that it would have been overheard not only by co-workers but also by other library customers.
Counsel states that in Complaints 1, 2 and 3 Mr Mallard has used exactly the same words reported to have been said by Ms Lawrence. It is submitted that this suggests a cementing of a concept by Mr Mallard that he has projected onto different events at different times. It is suggested that Mr Mallard seems to have taken offence at the language used by the library staff member who advised him of the new security arrangements for DVDs and he subsequently projected that discomfort onto other library visits.
Counsel submits that a scenario might be one where library staff became vigilant in an endeavour to prevent DVDs from being stolen and it may be that Mr Mallard felt stared at.
Counsel states that despite the allegations made by Mr Mallard, he was never banned from the library and he was never denied a service.
Discussion of the issues
Mr Mallard bears the onus of proof in establishing his claim of discrimination (Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53]).
The standard of proof is the balance of probabilities but in cases of alleged discrimination the seriousness of the allegations requires the Tribunal to adopt the general approach to fact finding taken in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 when assessing the strength of the evidence. This can be characterised as the Tribunal needing to feel an 'actual persuasion' that the facts alleged in this case actually occurred and a reasonable satisfaction that the allegations of discriminations have been proved before a finding can be made (Edoo at [53]).
To sustain a complaint of what is commonly called 'direct discrimination', Mr Mallard has to show in the first place that because of his race, he has been treated less favourably than the respondent treats, or would treat, a person of a different race in the same circumstances, or circumstances that are not materially different (s 36(1) of the EO Act).
The other elements to sustain a claim of direct discrimination are set out in Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 at [32] and are:
c)[t]here is a causal connection between the ground of discrimination alleged and the decision or act complained about;
•it is not necessary for [race] to be the sole or a dominant or substantial ground for the relevant conduct it is enough if it is one of the grounds for the conduct;
•proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of [Mr Mallard's race].
See Williams and Commissioner of Police [2005] WASAT 349 at [35] - [38] and the cases cited therein, and see also s 5 of the EO Act.
In Edoo at [160]-[163] (internal citations omitted), the Tribunal said:
160… The expression 'less favourably'… bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case …
161To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …
162It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established…
163It is not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison … In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable[.]
Mr Mallard is of Aboriginal descent. It is common ground that he is alleging that he was treated less favourably by Ms Lawrence because of his race.
The comparator must therefore be a person not of Aboriginal descent.
It is also common ground that the respondent through its library provides services as defined in s 3 of the EO Act and that Mr Mallard is claiming unlawful discrimination in the manner in which the respondent provided those library services (s 46(c) of the EO Act).
It is not in dispute that the respondent is vicariously liable for the actions of Ms Lawrence (s 161 of the EO Act).
The following facts are not in dispute.
During the period of the complaints (July/August 2016 to 6 February 2017) Mr Mallard was a member of the library and Ms Lawrence worked as a library assistant.
Mr Mallard would borrow DVDs and use the library computers.
Through the WISE Report the respondent accepts that Mr Mallard attended the library in June/July 2016 (Complaint1), 1 November 2016 (Complaint 3) and 6 February 2017 (Complaint 5).
During the period of the complaints, Mr Mallard lodged 'Feedback Forms' on 22 August 2016, 31 August 2016, 7 November 2016 and 15 November 2016.
On 1 September 2016, Ms Sarcich (the respondent's Manager of Service and Information at that time) met with Mr Mallard concerning his allegations against Ms Lawrence. Ms Sarcich subsequently met with Ms Lawrence and Ms Caddy on 5 September 2016 to discuss Mr Mallard's concerns.
The following can be said in favour of Mr Mallard's case:
1)He has maintained his position on the allegations consistently over an extended period of time;
2)He sought to remedy the situation through the respondent and when unable to get satisfaction made a complaint to the EOC and finally to this Tribunal;
3)He believes he has been subject to discriminatory behaviour by Ms Lawrence and could not be shifted from that position under cross-examination; and
4)He is not seeking monetary compensation. He wants an apology from the respondent.
Mr Mallard's allegation is that Ms Lawrence engaged in persistent almost relentless behaviour accusing him of likely trying to steal DVDs from the time the new security arrangements for DVDs were instituted by the respondent in around early January 2016. He is also alleging a collusion between Ms Lawrence and some of her co-workers keeping silent about Ms Lawrence's behaviour.
Mr Mallard has not been able to provide any direct corroborative evidence to support his allegations.
However, in the circumstances of this case, it seems inexplicable to the Tribunal that the respondent did not produce the co-workers to give evidence.
Not unexpectedly, given his status as an unrepresented litigant, this issue was not raised by Mr Mallard.
Despite this, the Tribunal is obliged to consider whether, by the respondent not calling the co-workers as witnesses, an inference should be drawn that the respondent did not expect the co-workers evidence to support the respondent's case.
This type of inference is referred to as the rule in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel).
The operation of the rule in Jones v Dunkel has been recently summarised by the Tribunal in Medical Board of Australia and Panegyres [2017] WASAT 146 (Panegyres) at [302]-[310], citing in particular Owen J in The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 (Bell Group Ltd) at [1004][1022].
The Tribunal is not bound by the rules of evidence (Jones v Dunkel is a rule of evidence) but is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32 of the State Administrative Tribunal Act 2004 (WA)) and in doing so must have regard to those rules in the appropriate circumstances (Panegyres at [302]-[304]).
Even though not calling the co-workers as witnesses is a serious omission in the respondent's case, the Tribunal is not prepared to draw an inference against the respondent for the following reasons:
a)In the Bell Group Ltd at [1019] Owen J said (citations omitted):
The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case. It may be that no inference at all may be appropriate.
b)In Complaints 1 and 2 Ms Lawrence is accused of making accusations of stealing or attempted stealing when she was at the counter which is about 10 meters from the DVD area where Mr Mallard was standing. I accept this would have required Ms Lawrence to speak in a voice able to be heard by some of her co-workers and perhaps other library customers.
c)Although not having direct evidence from the coworkers, the Tribunal has in evidence, the WISE Report, which the respondent independently commissioned and for which interviews were conducted with coworkers and statements taken.
d)In the analysis sections of the WISE Report none of the co-workers said they heard Ms Lawrence say the alleged words to Mr Mallard (Complaints 1 and 2 ) and none of the co-workers said they received any complaints from Mr Mallard about Ms Lawrence or heard Ms Lawrence discuss and complain about Mr Mallard's complaints (Complaint 4).
I accept that the alleged persistent behaviour of Ms Lawrence would not have gone unnoticed by her co-workers or members of the public and I accept Ms Sarcich's submission that such behaviour would more likely than not have been eventually reported to library management.
There is no evidence of any other complaints made against Ms Lawrence by any other person that might suggest a propensity by her to engage in the alleged behaviour.
Mr Mallard's complaints have not been well particularised and although some allowance may be given to an unrepresented litigant, the complaints stated on the 'Statement of Circumstances and Allegations' do not find their specific reflection in the contemporaneous 'Feedback Forms' lodged by him.
Mr Mallard has been unable to produce dates for the alleged incidents in Complaint 4.
Both Mr Mallard and Ms Lawrence presented as sincere in their oral evidence.
However, that the facts alleged by Mr Mallard (in all of the Complaints 1 to 5) when taken on their own, can present a possible version of what took place, is insufficient in the Tribunal's view to satisfy the burden of proof, the 'actual persuasion' required to be felt.
The Tribunal was concerned that Mr Mallard was unrepresented. He had been encouraged to seek legal representation.
As a consequence, and not uncommon for unrepresented litigants, Mr Mallard did not present his case at its strongest, for example, by not requiring any of the co-workers of Ms Lawrence nominated in the WISE Report to give evidence or in the cross-examination of the respondent's witnesses.
Be that as it may, the Tribunal is not satisfied to the required standard that Mr Mallard has been able to prove that what he says happened, did in fact happen.
Mr Mallard's complaint must therefore be dismissed.
Order
For the reasons given, the Tribunal makes the following order:
1.The complaint in proceedings EOA 11 of 2017, between Mr Murray Mallard and City of Fremantle is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
12 JUNE 2018
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