Moore v Slondia Nominees (No 2) - [2013] SAEOT 5

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
MOORE v SLONDIA NOMINEES (No 2)
[2013] SAEOT 5
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
22 February 2013
DISCRIMINATION LAW
Allegation of discrimination on the ground of sex in an employment context - allegations denied by the respondent - damages awarded to complainant.
Equal Opportunity Act 1984 (SA), referred to.

MOORE v SLONDIA NOMINEES (No 2)
[2013] SAEOT 5

This matter concerns a complaint made by Ms Moore against Slondia Nominees Pty Ltd (“Slondia”), her former employer, to the Commissioner for Equal Opportunity (“the Commissioner”). The Commissioner referred the complaint to the Tribunal.
Ms Moore’s complaint is a complaint of discrimination against her in her capacity as a worker, on the ground of sex.
The Equal Opportunity Act 1984
The Equal Opportunity Act 1984 (“the Act”) provides, in s 29(2):
For the purposes of this Act, a person discriminates on the ground of sex –
(a)    if he or she treats another unfavourably because of the other’s sex; or
(b)    if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirement than of those of the other’s sex; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other’s sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other , being an attribute or circumstance described in the preceding paragraphs.
The Act further provides, in s 30:
(1) It is unlawful for an employer to discriminate against a person on the ground of sex, chosen gender or sexuality –
(a)in determining, or in the course of determining, who should be offered employment; or
(b)in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex, chosen gender or sexuality –
(a)in the terms or conditions of employment; or
(b)by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to other detriment.
Ms Moore’s Complaint
It is plain from Ms Moore’s complaint to the Commissioner that she was alleging that Slondia treated her less favourably than male employees at the equivalent level in respect of the terms and conditions of her employment and, in particular, in respect of whether she was permanent part time or casual, and in relation to the payment of penalty rates and casual loading. She also complained that she was discriminated against in relation to the offering of overtime and the offering of training. Ms Moore complained, in her initial complaint, that she had been excluded and alienated from time to time in the context of her employment. She argued that all of these matters had contributed to the termination of her employment on 29 December 2010 by Slondia.
Slondia denied the allegations of discrimination on the ground of sex.
Hearing
At the hearing of the matter, Ms Moore gave evidence in her own case, and called Mr Botchen, who is an employee of Slondia, and Mr Anstey, who is also an employee of Slondia. Mr Davies, a State Manager employed by Slondia, was the sole witness in the respondent’s case.
The Evidence in the Complainant’s Case
Ms Moore gave evidence that she was engaged by Mr Davies to work at Mike’s Multiservice (“Mike’s”) at West Lakes in June 2009. Mike’s is a business owned by Slondia, which provides shoe and leather repair services, engraving, key cutting and other services from a kiosk at the West Lakes shopping centre. Slondia is based in Perth, Western Australia. Mr Davies was the manager of Mike’s, and there were a number of other employees. Ms Moore had, by June 2009, worked in the industry for about 9 years for other employers and had developed particular expertise in leather stitching for the repair of shoes, handbags, jackets and other leather goods.
Ms Moore agreed with Mr Davies that she would work three days per week at Mike’s, namely Monday, Thursday and Saturday, at $18 per hour. The usual hours were from 9am until 5 or 5.30 pm, with some flexibility. Ms Moore had been working at another shoe repairer, Beaudelle’s, in the city of Adelaide, for some years on Tuesdays, Wednesdays and Fridays, as a casual, and intended to continue in that employment. Ms Moore believed that she was being employed by Slondia on a permanent part time basis. She was given a tax declaration form, and she completed it, ticking the “part time” box, and handed it back. She could not recall whether her impression that her employment was to be permanent part time was the result of a specific representation or was something she assumed.
In October 2009, Mr Davies advised Ms Moore that she would not be paid for the Monday of the October long weekend because it was a holiday and she was, he said, a casual. She argued with Mr Davies, but he was unmoved, so Ms Moore consulted the Fair Work Ombudsman, and was informed that if she was a casual, she ought to be paid a casual loading. She had not been paid a casual loading. She took no further action at that stage. She was told by an officer of the Fair Work Ombudsman that she had six years within which to bring a claim.
Throughout her employment with Slondia, Ms Moore was the only female working at Mike’s at West Lakes. There were five males, in addition to Mr Davies. Over the shopping period leading up to Christmas 2009, Ms Moore noticed that all of the other employees were being offered considerable overtime. She was offered only one Sunday for four hours, which she took. She was paid $25 per hour for that time.
The next incident of which Ms Moore complained was Easter Saturday 2010, on which most of the employees at Mike’s at West Lakes worked. It was Ms Moore’s understanding that the pay for Easter Saturday was to be two and a half times the basic rate. The following Wednesday, when she received her pay, she found that she had been paid only her base rate of $18 per hour. She understood that the other employees had been paid the penalty rate. She enquired of Larry Thomas, the pay officer for Slondia, and he informed her that she was not entitled to the penalty rate because she was a casual. Ms Moore said, in evidence:[1]
I said “Listen, Larry, you haven’t paid me that penalty rate” and he said “Well, you are not entitled to it because you are a casual” and that’s what brought on my heated argument with Larry over several conversations on the phone because it clearly states in the award that all employees are to receive the penalty rate. I tried to explain this to Larry and he said “No, you are not entitled to it because you are a casual” and that’s when I brought up the fact “Well, I want the casual loading”. Then he changed his mind and said “well, I don’t know if you’re part-time or casual”. He was just running me around, giving me the run around.
[1] Transcript p 16
Ms Moore’s evidence was that she was not the only casual on the staff by Easter 2010. Sam Portaro was also a casual, but he was given the penalty rate. He had been employed only a few weeks before Christmas 2009. Sandy Varga (a male) also worked only three days per week, but was given the holiday loading. Ms Moore’s evidence was not contradicted on this point.
Ms Moore telephoned Mr Tyrone Mercanti, who she understood to be the proprietor of Slondia. Ms Moore said in evidence:[2]
A    So I decided I’d ring Tyrone Mercanti, he’s the boss, he could fix it. So I rang him and he just brushed it off, didn’t want to know, wasn’t interested. He just basically backed up well, if that’s what Larry says, then that’s what Larry says. I tried telling him that it was in the award, but he didn’t want to listen. I started getting annoyed with him because he was just treating me like an idiot as well, He knew I was getting annoyed and he made some remark about I’d told everybody in the company, well you’ve already told everybody in the company that you didn’t get paid now didn’t you. Said yeah, I did tell everybody because I was the only one that didn’t get paid and I want to get paid, and he was just being arrogant and he said if I was that desperate for the money, he’d lend it to me.
Q    This was Tyrone Mercanti.
A    Yes.
Q    How did you feel at that time.
A    Really annoyed.
Q    Anything else.
A    You know, I’d try to say to him I don’t want you to lend me the money Tyrone, you owe me the money and yeah, he just brushed it off. “Put on a smiley face and get on with it”, that’s what he said. He just- yeah, well, it’s another story. He’s just – it was his arrogance and he didn’t treat the other employees the way he treated me.
[2]    Transcript p 19
It was Ms Moore’s evidence that, when Mr Mercanti visited Adelaide from Perth, where he was based, he would invite a group of employees out for drinks. This happened approximately every eight weeks. Ms Moore was the only employee of Mike’s who was never invited.
Ms Moore said that Mr Davies returned from holidays after Easter and took up her complaint about the penalty rate for Easter Saturday. He was successful, and she was paid the penalty. He also arranged for her to be paid a casual loading. In this context, she asked Mr Davies if she could become a permanent part time employee. He agreed that that could occur from 1 July 2010.
Ms Moore was paid for the holiday Monday of the October long weekend of 2010. She took this as confirmation of her permanent part time status.
In November 2010, Ms Moore made a claim against Slondia to the Industrial Court for underpayment of wages.
Over the period leading up to Christmas 2010, Ms Moore was not given any overtime. All of the other employees were given overtime hours, regardless of whether they were full time, part time or casual.
Ms Moore gave evidence that, over the course of her employment with Slondia, she asked for extra hours on a Thursday night on about three or four occasions. She said that she asked for overtime once on Sundays. She said, in evidence:
Q    And did you ask for Sunday work.
A    I did on one occasion and I was told because – and that was by Scott Davies – because they only had one person in – the shops, the three or four shops, only were manned by one person.
Q    Yes.
A    So I was told that I couldn’t work on the Sundays because I didn’t have the skills available to do so –
Q    And which skills –
A    - on my own.
Q    Which skills did you understand them to be talking about.
A    Being able to do soles and heels, watch batteries, engraving.
Q    They were all tasks you did not do.
A    Yes.
Ms Moore was dismissed in a telephone conversation on 29 December 2010.
It was Ms Moore’s evidence that, in the course of her employment with Slondia, she requested training. She received a little engraving training early in her time with Slondia, but the employee who was training her was moved to Melbourne. After that, she said, Mr Davies discouraged her from trying to become involved in the engraving. Ms Moore asked to be shown how to change watch batteries. She was ignored. Ms Moore observed that other employees were permitted to practice engraving when they were not required to do other things. Mr Davies told her not to waste time when she attempted to practice. He told her that she could not engrave because she was left handed. Ms Moore observed that other employees were given training and assistance with learning engraving. She observed that other employees were trained in repairing soles and heels. She said, in evidence:
A    Well, I asked for training in general and, you know, “Why can’t I work on my own?”

“Because you can’t do this”

“Well, why can’t you teach me then?”
Q    Did you actually say that.
A    Well, yes, to Scott, but probably only the once and just “You do stitching, that’s it. That’s all you do.” And I think in all the aspects it was I was just there to do the stitching. I wasn’t there for anything else and nobody had any interest in showing me anything else other than cutting keys because a lot of keys get cut. So, yes –
Q    So you were trained to cut keys.
A    Well, I knew how to cut keys already.
In explaining why she attributed the treatment of her by her employer to her sex, Ms Moore said, in evidence:
It was just little things like if people came in, customers came in and they wanted certain things done like taking in boots. You know, women that have skinny legs and their boots were too big, they want them fitted. So that falls to me, that kind of thing. So when people came in with boots to be taken in, if I wasn’t there then they were just told “Well, you will have – come back on Thursday when the stitching lady is here”. Even when I was there it’s like I was just referred to as the stitching lady and they really – it was as though –
Ms Moore became upset and tearful at that point in her evidence, and there was a brief adjournment. When the Tribunal resumed, Ms Moore continued:
Just basically, you know, I – they just all saw me as the stitching lady and nothing else. That was the girl job and the soles and heels was the boy job.
Ms Moore was asked to explain further, and described how, when a customer came to the counter, Mr Davies invariably expected her to drop whatever she was doing and serve the customer, even if that meant pushing past other members of staff and/or Mr Davies to get to the customer, when it would clearly have been more convenient for Mr Davies or the other members of staff to serve the customer as they were closer. Mike’s premises at West Lakes is a narrow kiosk. Ms Moore understood this practice to imply that whatever anyone else was doing was more important that whatever she was doing. Mr Davies would call out to her “Sandy, serve.” Ms Moore noticed that Mr Davies would chat with acquaintances of his, briefly, from time to time in working hours. Mr Davies would tolerate other, male, employees chatting to visitors, such as their relatives or friends, at the kiosk during working hours, and some of them had visitors quite frequently. Ms Moore rarely had visitors because she lives quite far away from West Lakes, but, on one occasion, she was visited by her elderly aunt and uncle, and, during her brief chat with them, Mr Davies said words to the effect of “Are you going to do any work today?” He would say something similar from time to time whilst she was serving a customer, too. Ms Davies noticed that lapses by other, male employees, such as a loss of temper with a customer, or the spending of time by a male employee on Facebook on his phone, or frequent chatting with acquaintances, was tolerated by Mr Davies, whereas she was held to a much stricter standard of behaviour and publically reprimanded by Mr Davies if she departed from that standard.
Mr Botchen gave evidence in Ms Moore’s case. Mr Botchen started his employment at Mike’s in about September of 2008. He had no relevant prior experience. He is a permanent full time employee, though he has just handed in his notice. It was his evidence that he received “on the job” training in the cutting of keys, the computer engraver, the changing of watch batteries and basic shoe repairs from the beginning of his employment. In about October 2008, when the computer engraver was purchased, Mr Botchen attended training with Mr Davies, which was conducted by the vendor of the machine. Mr Botchen was permitted to practice computer engraving several times per day during less busy times. More recently, he has received training in hand engraving, and more training in shoe repairs. He is able to run the kiosk on his own and frequently does so. Mr Botchen said that he was permitted to run the kiosk by himself before he acquired the skills to do all of the work. He would simply take in the work he could not do himself and arrange for it to be done the next day. Mr Botchen said that he frequently worked on Sundays, and he worked most Thursday nights. On Sundays, he would mostly work alone, on Saturdays he would be one of two or three, and on Thursday nights, he would be one of two, or sometimes three in busier times.
Mr Botchen said that, after Ms Moore left, at the end of December 2010, he did some of the stitching, and so did Mr Davies and another employee. He recalled working some overtime in January of 2011. He was unaware of any unusual downturn in business that January, bearing in mind that January is always slower than December.
Mr Botchen gave evidence that he was invited to drinks with Mr Mercanti several times in each of the years of his employment, so that he went to drinks about a dozen times, in total.
In cross examination, Mr Botchen said, in the context of discussing Thursday nights:
Q You gave some evidence, Thursday I think we were talking about, was there a difference between Thursday and Thursday night.
A. Not really, basically all our staff are trained or getting trained similarly – so, they’re all basically, most of the time 12 hours on a Thursday. So, it’s all fairly similar right the way through.
Mr Botchen went on to say that, usually, the employees who were working on a Thursday during the day would stay on for the evening shift, except for Ms Moore.
Mr Anstey gave evidence in Ms Moore’s case. Mr Anstey is an employee at Mike’s. He was rostered on at West Lakes, and, also, from time to time, at the Mike’s shop at Elizabeth and at Tea Tree Plaza. When he started at Mike’s in 2008, he had basic shoe repair skills and he could change watch batteries. At Mike’s he was trained in shoes, keys and engraving. Mr Anstey gave evidence that he was rostered on to run the Elizabeth shop alone prior to being fully proficient at shoe repairs.
Mr Anstey said that, in 2009, he was given overtime every couple of weeks. In 2010 he was given most Sundays and every Thursday night. Mr Anstey said that he had not needed to ask for overtime, or to work on a Thursday night, he was simply rostered on in the ordinary course.
Mr Anstey gave evidence that he had some experience of being underpaid for Easter Saturday. He said that the issue has arisen more than once because Easter Saturday is not a public holiday in Perth, so the pay officer forgets that it is a public holiday in Adelaide. Mr Anstey said that after sending an email pointing out the error, he gets it corrected in his next pay. He has never had to argue about that with any officer of Slondia.
Mr Anstey has been to about three gatherings when Mr Mercanti has visited. He said that he found out about the gatherings from either Mr Mercanti himself or another employee. He thought that any of the employees were allowed to go, that “everyone just knew” and it was up to the individual as to whether they went or not.
The Evidence in the Respondent’s case
Mr Davies gave evidence in the Respondent’s case. Mr Davies is the manager of four shops, which were referred to as West Lakes 1, West Lakes 2, Tea Tree Plaza and Elizabeth. He does all the rosters and the figures for all the shops and manages the employees, as well as doing shoe repairs at and directly managing West Lakes 1. Mr Davies has specialised skills in altering shoes to accommodate medical conditions such as hip replacements and deformities.

Mr Davies gave evidence that, on the occasions when he asked Ms Moore if she would like to go home early, she frequently would. He said that she was engaged for her skills as a stitcher, and that he did not need her to do anything else. He said that he did give her some opportunities to learn, but that she was busy with the stitching and did not have much time to do anything else.
Mr Davies said that he tried to give Ms Moore as many hours as he could. He did not roster her to work on Thursday nights. He implied that because she was willing to go home when the shop was quiet that it did not occur to him to do so. He did not roster her on for Sundays because it was his opinion that she could not work by herself. He said he gave preference to full time employees in the rostering for Sundays because he was obliged to give them 38 hours per week.
Mr Davies said that Ms Moore was the only female working in any of the three shops in 2009 (West Lakes 2 was not then operating). She was also the only part time employee.
Mr Davies said that he favoured the full time employees to work alone on Sundays as a way of keeping them content with their employment. His perception was that the employers in the industry competed for experienced employees. Mr Davies said:
Q    And you choose to favour the full-timers.
A    Yes. Well obviously because of the fact that I would want them to stick around us. Our industry is – they will go where they can get the most money, you know, so if I don’t give them a certain amount of money or hours to get the money they’ll get they’ll just move on. You know, if I don’t then I’m stuck with workers and I can’t run four shops by myself. You know, I have to please these guys that actually help me out by coming on a day that’s someone’s sick or, you know, these guys want extra things, it’s – I mean, I’ve got a very happy workforce obviously apart from Ms Moore, obviously she didn’t leave in the best of terms, but all my workers do like working for me because of the fact that I try and give them what they want and when they ask me for it I try my best to give it to them.
Q    And are they all male workers.
A    They are, we have had Jill since then, she was a specialised retail person because Tea Tree Plaza is a different type of shop. And the same thing, we just didn’t have enough work for her, and she always comes back and asks me if we’ve got work for her, she’s always asking me.
Mr Davies explained that his sister was a shoe repairer, but she was afraid of the shoe machine and the possibility of nicking her hand on the machine. Mr Davies said that he thought that Ms Moore was also concerned about nicking herself on the shoe machine and said that she was reluctant to trim around heels with the machine when she helped him with a shoe repair.
Mr Davies said that he did not train Ms Moore because there was so much stitching work, and he did not need her to perform other tasks. He agreed that he trained all of the male employees in all of the tasks, even though they might have had a particular area, such as watches or engraving, that they specialised in. Mr Davies said:
But most of the guys I brushed up but, you know, they were my full-time workers so I just pretty much trained them. With Sandy, like I said, she was the stitcher. She came in to do the job of that particular thing, which she was great at.
It was clear from Mr Davies’ evidence that all of the employees were capable of doing stitching. Ms Moore was simply the most proficient at it.
Mr Davies said that there were only three keys to the safe at the West Lakes kiosk, and that no further keys could be cut for the safe. Mr Davies implied that he was reluctant to give a key to anyone other than Daniel and Brian, who also work at West Lakes. He implied that this was because Ms Moore was part time, and because of the risk of a key being lost. When Ms Moore pointed out to him in cross examination that she was working on Mondays, so a key could have been given to her and returned by her to Mr Davies on a Monday, Mr Davies reverted to saying that Ms Moore did not have the skills necessary to work on a Sunday, by herself.
Mr Davies agreed in cross examination that Ms Moore would have been capable of learning all of the skills necessary to run the kiosk by herself.
Mr Davies admitted in cross-examination that the only member of staff at West Lakes who was never invited to drinks with Mr Mercanti was Ms Moore. The only female employee of Slondia who seems to have been invited to these drinks was a woman who worked at the warehouse who was married to a male employee of Slondia.
The time sheets tendered showed that, two weeks after Ms Moore’s dismissal, a new employee by the name of Jill was engaged. Jill was engaged for the Tea Tree Plaza shop. Mr Davies agreed in cross examination that Ms Moore could have performed the work Jill was engaged to perform, but that he was concerned that the hours might have clashed with her hours at Beaudelle’s. Jill worked for Slondia until May/June 2011. In March 2011, Paul White was engaged by Slondia. After a few staff changes, he became a permanent full time employee.
Ms Moore gave evidence in rebuttal, because the issue of whether she was afraid of the shoe machine had not been put to her. She denied being afraid to operate the shoe machine. She denied ever indicating to Mr Davies that she was afraid of the machine. She said that she had learnt to operate it over the past ten years. She said that she was willing to operate the shoe machine to perform all of its processes and that she had no fear of it. She pointed out that she used the shoe machine to grind leather and for other processes in the stitching tasks. She indicated that she was “pretty familiar” with the machine.
Credibility
We accept that Mr Botchen and Mr Anstey both gave a truthful account of their experience at Mike’s.
Ms Moore gave her evidence in a frank and straightforward manner. Her distress at her treatment by Slondia was genuine and heartfelt.
It seemed to us that Mr Davies was genuinely upset about the breakdown in his friendship with Ms Moore. However, it was clear that, in his evidence, Mr Davies was seeking to justify his own actions, and those of Slondia, rather than simply giving his recollection of events. In his evidence, Mr Davies cast around for alternative explanations for the way in which Ms Moore was treated. In relation to the issue of extra hours and overtime, Mr Davies explained the omission to roster Ms Moore on for Thursday nights in terms of her willingness to go home early, when she was asked, and in terms of the need to keep the hours of the full time employees up. He admitted, however, that he was aware of her wish to work more hours. In relation to his omission to roster Ms Moore on for Sunday overtime, his explanations ranged over, again, the need to keep the hours of the full time employees up, the difficulty he perceived in having Ms Moore in possession of a safe key, and Ms Moore’s lack of skill in various areas of services provided by Mike’s. In relation to the omission to train Ms Moore in the entire range of services provided by Mike’s, Mr Davies emphasised her special skills as a stitcher. He agreed, however, that other employees had special skills in other areas, such as engraving and watch repairs, but this did not hold them back from being trained in all other areas of the business.
Where Ms Moore’s evidence and Mr Davies’ evidence are at odds, we prefer the evidence of Ms Moore. We do not believe, for example, that Ms Moore was afraid of the shoe machine or ever indicated that she was afraid of the shoe machine. Clearly, she used it frequently. It is clear from the documentary evidence of the hours worked by all of the employees in the relevant period that it would have been possible to roster Ms Moore on for some Sundays without depriving the full time employees of full time hours. The explanation regarding the safe key was nonsense. Obviously, it would have been possible to entrust Ms Moore with a safe key to enable her to work on a Sunday. The explanation regarding her lack of skills in the context of managing a kiosk by herself on Sundays was indirectly contradicted by the evidence of Mr Botchen, who was rostered to work alone on a Sunday prior to attaining the entire range of skills. It was also contradicted by the evidence of Mr Anstey, who was rostered on to work on a Sunday early in his employment. We believe that Ms Moore sought training but was ignored and discouraged. Mr Davies at one point put forward an explanation that, as a left hander, Ms Moore was unsuited to computer engraving. Later in his evidence he admitted that he was aware that it was possible for left handed people to master computer engraving. Left handedness is presumably no impediment in hand engraving.
Discrimination
We have set out the description of ‘discrimination’, in s 29(2) of the Act, above. The relevant part of that definition is s 29(2)(a), which says that a person discriminates on the ground of sex:
if he or she treats another unfavourably because of the other’s sex.
Pursuant to s 30, also quoted above, it is unlawful for an employer to discriminate against an employee on the ground of sex in the terms and conditions of employment:
(a)    in the terms or conditions of employment; or
(b)    by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)    by dismissing the employee; or
(d)    by subjecting the employee to other detriment.
Ms Moore was treated less favourably than the other employees of Slondia working in the Mike’s shops throughout the period of her employment. Although employed under the same award as the other employees, she alone was not offered hours to work on Thursday nights. She alone was not, as a matter of course, offered Sunday overtime hours. She alone was not automatically given sufficient training so that she could perform all of the work to offer the range of services provided to customers by Mike’s. Mr Davies admitted that Ms Moore had the capacity to learn all of the requisite skills. He praised her skills at stitching, and her customer service and manner. He agreed that she would have been capable of being trained to do everything necessary to open and close a shop on a Sunday by herself. His explanations for her treatment were not plausible. All of them could have been managed easily had there been a willingness to advance Ms Moore in the same way as the male employees were advanced.
The context within which this treatment of Ms Moore by Slondia emerged through the evidence. Her status – whether it was casual or permanent part-time – was a source of on-going conflict. No reason was given to Ms Moore for that, or for the reluctance to pay Ms Moore overtime for Easter Saturday 2010. It is difficult to imagine that Mr Mercanti would have told a male employee who had contacted him about a failure to pay an overtime entitlement to “Put on a smiley face and get on with it”, or to be told that if the money was so desperately needed that he would lend it to them.[3] It is unclear whether the regular drinks with Mr Mercanti operated by way of invitation or word of mouth, but, in any event, Ms Moore was apparently, on the evidence, the only employee working in the shops who was never included. She was also the only female employee working in the shops throughout her employment.
[3] Transcript p 19
The inference that Ms Moore’s unfavourable treatment by Slondia occurred because she is female is inescapable. None of the explanations put forward on behalf of Slondia is credible. We do not think that there was, at any point, a conscious decision to treat Ms Moore less favourably because she was not male. We believe, however, that Mr Davies wrongly attributed certain characteristics to Ms Moore because she was female, and then behaved towards her accordingly. He assumed, for example, that she was afraid of the shoe machine, was too chatty, wished to go home early and was uninterested in expanding her skills. He characterised her as a stitcher – “the stitching lady”, and found it convenient to confine her to that role. Although he recognised that some of the male employees had specialised skills in other areas of the business, it did not occur to him to limit them to their area of specialisation in the same way. The fact that Ms Moore worked part time did not logically make it necessary to confine her in the way in which she was confined. On Ms Moore’s evidence, which we accept, there were other part time employees who were not so confined.
The culture of Slondia, in so far as it emerged from the evidence, did not seem to accommodate Ms Moore in the same way as it accommodated the male employees. For example, Mr Anstey had no difficulty having the error in his Easter pay remedied, but Ms Moore encountered very significant resistance over the same issue.
Remedy
We are aware that a claim for underpayment of wages has been decided by the Industrial Relations Court (SA) and that a claim for unfair dismissal has been decided in the Federal Court.
The Act provides, in s 96(1),(3) and (3a):
96—Power of Tribunal to make certain orders
(1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:
(a)subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;
(b)an order requiring the respondent to refrain from further contravention of the Act;
(c)an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention or remedying a discriminatory or unlawful act.
…
(3) The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
(3a) In awarding compensation the Tribunal must take into account the amount of damages or compensation (if any) awarded in other proceedings (criminal or civil) in respect of the same act or series of acts.
An award of compensation to Ms Moore is warranted in relation to Slondia’s contraventions of the Act. In making an award of compensation, we take into account the award made in relation to the underpayment of Ms Moore and the judgment in relation to her dismissal. We do not include either of those issues in our calculation of compensation. We will confine our award of damages to damages for Ms Moore’s lost opportunity for extra hours and overtime, loss of the opportunity to improve her skills, and damage to her feelings.
The heads of loss do not lend themselves to a process of precise mathematical calculation. For loss of opportunity to work from time to time on Thursday nights (at $18 per hour), and loss of the opportunity for Ms Moore to expand her skills, we award compensation in the sum of $2,500. In relation to the omission to offer Ms Moore a proportionate share of overtime on Sundays, we bear in mind her rate of pay, the provisions of the Boot and Shoe Award 2006 with respect to overtime, and the fact that she did work on one Sunday during the approximately one and a half years of her employment with Slondia. We will award compensation in the sum of $1,200 in relation to Sunday overtime. For damage to her feelings, we award a further $2,500. The total compensation will therefore be $6,200.
There will be an order accordingly.