Murphy v David Jones Limited

[2002] NSWADT 140

CITATION:	Murphy v David Jones Limited [2002] NSWADT 140
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Emmett Joel Murphy Junior RESPONDENT David Jones Limited
FILE NUMBER:	011012
HEARING DATES:	21/06/2001-22/06/2001, 01/08/2001
SUBMISSIONS CLOSED:	08/29/2001
DATE OF DECISION:	08/15/2002
BEFORE:	Rice S - Judicial Member; Nemeth de Bikal L - Member; Silva A - Member
APPLICATION:	Race Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Security Industry (Protection) Act 1985 Security Industry (Protection) Regulation 1986
CASES CITED:	Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 Gidaro v Secretary, Department of Social Security, Federal Court [1998] 400 FCA; 154 ALR 550 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133
REPRESENTATION:	APPLICANT In person RESPONDENT R McIlroy, solicitor
ORDERS:	1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.; 2. The complaint of victimisation is dismissed.; 3. The respondent shall within 28 days pay to the complainant the sum of $1,000 by way of compensation for loss and damage.

1 For the reasons given below the Tribunal finds that Mr Murphy’s complaint of race discrimination is substantiated as to one of the allegations made, and that Mr Murphy’ complaint of victimisation is not substantiated.

BACKGROUND

2 Mr Murphy was born in Houston Texas USA, and was raised in the United States of America. His ‘race’ within the definition of s4 of the Anti-Discrimination Act (the ‘ADA’) is African American. He was actively an officer of the United States Navy until October 1994, and remained in inactive service until January 1998.

3 Mr Murphy arrived in Australia in May 1995. In August 1995 he was employed by David Jones Pty Ltd (‘David Jones’) as a security manager – Loss Prevention Supervisor – at the Pagewood store in Sydney.

COMPLAINTS

Letter of complaint

4 On 5 June 1998 the Anti-Discrimination Board received a letter from Mr Murphy saying:

I believe that during the time I have been employed by David Jones I have been subject to work conditions different from other employees. I also believe I have been treated less favourably than other employees in a similar position. I believe I have been required to comply with conditions which other employees did not have to comply with. I believe I have been denied access to opportunities for transfer and training afforded other employees. I feel I have been subjected to detrimental treatment and have been victimised due to my complaints about my race and sex.

5 Despite the reference to ‘sex’ in the last sentence of the quoted passage, the President of the Anti-Discrimination Board did not investigate or refer a complaint of discrimination on the ground of Mr Murphy’s sex, and Mr Murphy led no evidence relating to such a complaint.

6 In his letter of complaint Mr Murphy recounted incidents in his employment which began during his period of training in late 1995. He recounted incidents in 1995, 1996 and 1997. He then said that “[o]n 5 November 1997 I was dismissed from employment with David Jones . . .”. He then told of his re-employment with David Jones in December 1997, incidents in December 1997 and January 1998, and his resignation from David Jones on 9 January 1998.

Time limit

7 A complaint must be lodged within six months of the conduct complained of (s88(3) ADA): the relevant ‘cut off’ date for Mr Murphy’s complaint would therefore be 5 December 1997. The President has a discretion to accept complaints relating to conduct more than six months before the complaint if, in the President’s view, “good cause” can be shown.

8 The President decided not to accept Mr Murphy’s complaint to the extent that it related to incidents occurring before 5 November 1997, as those events had not occurred within six months before his complaint was received and, in the view of the President, Mr Murphy had not shown good cause for them to be accepted out of time. The President did however extend time and accept the complaint to the extent that it related to incidents occurring between 5 November and 5 December 1997 even though they were before the 6 month period.

Investigation and referral

9 The scope of the President’s investigation and subsequent referral to this Tribunal was limited to so much of the conduct complained of by Mr Murphy that occurred on and after 5 November 1997.

10 On 3 November 2000 the President wrote to David Jones and David Jones replied to the President on 21 November 2000, commenting on the allegations of fact and denying the allegations of unlawful conduct.

11 On 1 March 2001 the President referred Mr Murphy’s complaints to the Tribunal for inquiry, saying that he had attempted to resolve them through conciliation but had been unsuccessful.

Liability

12 David Jones has accepted responsibility for the conduct of its employees, and liability for any findings of unlawful discrimination in these proceedings. Accordingly no issues under sections 52 and 53 of the Anti-Discrimination Act (‘ADA’) arise in this matter.

CONDUCT OF THE INQUIRY

13 The inquiry was conducted in Sydney over a period of 3 days: 21 and 22 June, and 1 August 2001. Written submissions were subsequently filed, and closed on 29 August 2001.

14 At all stages of the inquiry Mr Murphy represented himself, and David Jones was legally represented.

15 The legal and evidentiary issues that are raised by a complaint of direct discrimination are complex. Although Mr Murphy was well prepared, thorough and articulate, it was appropriate for the Tribunal to extend its assistance to Mr Murphy within the bounds discussed by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85. Further, the Tribunal used its powers under the Administrative Decisions Tribunal Act to “inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice” (s73(2)), and to act with as little formality as possible, without regard to technicalities or legal forms (s73(3)). The Tribunal acted under its obligations to ensure that Mr Murphy understood the nature and legal implications of the issues that arose, to explain to him its procedures and rulings, and to ensure that he had the fullest opportunity practicable to be heard (s73(4)). In so doing the Tribunal had the co-operation of the respondent David Jones and its legal representative.

16 No documents in the form of pleadings were filed with Tribunal. As Mr Murphy’s allegations were clearly set out in his letter of complaint which was in the report of the President, the Tribunal directed that the inquiry would proceed on the basis of the President’s report and any further statements filed. (see eg Gidaro v Secretary, Department of Social Security, [1998] 400 FCA; (1998) 154 ALR 550 at pp556-558).

17 David Jones filed documents and witnesses’ statements, and Mr Murphy filed various documents.

APPLICABLE LAW

Race discrimination

18 Mr Murphy’s complaint of race discrimination invokes sections 7 and 8 ADA. In terms of section 7(1)(a) ADA, Mr Murphy says that David Jones treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a person of a different race from Mr Murphy’s race. Under the ADA to treat someone in this way is to ‘discriminate on the ground of race’.

19 In terms of section 8(2)(a), (b) and (c) ADA, Mr Murphy says that his employer, David Jones, discriminated against him on the ground of his race:

· in the terms or conditions of employment which it afforded him,

· by denying him access, or limiting his access, to benefits associated with his employment, or

· by subjecting him to other detriment.

20 Under the ADA to discriminate in these circumstances is unlawful.

21 The Tribunal must ask, for each of the allegations: was there less favourable treatment and, if so, was it on the ground of race? (Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5). Where the comparator is hypothetical, the two questions as to “less favourable treatment” and “on the ground of race” might be answered as part of the same reasoning exercise (Dutt v Central Coast Area Health Service [2002] NSWADT 133).

Victimisation

22 Mr Murphy’s complaint of victimisation invokes section 50 of the ADA. In terms of s50(1)(c), Mr Murphy says that David Jones subjected him to detriment on the ground that he had alleged that he had been discriminated against.

23 Mr Murphy made that allegation on 9 December 1997, when he complained that Ms Hullick had used what he considered a race-based term: ‘boy’. Conduct of which Mr Murphy complains before he made that complaint could not be victimisation within the meaning of s50(1). Conduct after Mr Murphy made that complaint could be victimisation and could as well, or instead, be race discrimination.

24 We are satisfied on evidence of Mr Platteel and Ms Boyd that they were aware, at the time that Mr Murphy complained of Ms Hullick saying ‘boy’, that Mr Murphy was alleging race discrimination. David Jones did, therefore, know that Mr Murphy had alleged discrimination for purposes of founding a victimisation claim under s50(1).

25 The Tribunal must then ask whether David Jones did anything which caused Mr Murphy detriment, and whether it did so on the ground that Mr Murphy had alleged race discrimination.

EVIDENCE

Witnesses

26 Mr Murphy gave evidence, elaborating on the allegations in his written complaint to the Anti-Discrimination Board. His evidence in chief addressed in turn the allegations in his complaint.

27 Ms Browne gave evidence for Mr Murphy about an incident to which she was a party on 17 December 1997.

28 Ms Hullick gave evidence for David Jones. She was at the relevant time a Loss Prevention Officer with David Jones at the Pagewood store, except for a short period between December 1997 and January 1998. Ms Hullick’s evidence was about her working relations with Mr Murphy, and particular incidents complained of by Mr Murphy in which she was involved.

29 Ms Boyd gave evidence for David Jones. She was at the relevant time Staff Manager at the David Jones Pagewood store. Ms Boyd gave evidence about issues arising in the course of Mr Murphy’s employment, discussions she had concerning incidents involving Mr Murphy, and Mr Murphy’s resignation.

30 Mr Platteel gave evidence for David Jones. He was at the relevant time a Risk Manager with David Jones, having responsibility for, among other sites, the Pagewood store. Mr Murphy reported directly to him. Mr Platteel gave evidence about issues arising in the course of Mr Murphy’s employment, what he observed of relations between Mr Murphy and Ms Hullick, discussions he had with Mr Murphy about incidents and treatment Mr Murphy complained of, and investigations he conducted into incidents and complaints.

31 Mr Farrell gave evidence for David Jones. He was at the relevant time General Manager of Employee Relations, and was the person to whom both Ms Boyd and Mr Platteel reported. Mr Farrell gave evidence about a staff induction course, David Jones’s policies regarding equal opportunity in employment, discussions with Ms Boyd and Mr Platteel, discussions with Mr Murphy, and his dealings with lawyers acting on Mr Murphy’s behalf.

Proof

32 In his complaint to the Anti-Discrimination Board Mr Murphy complained of “treatment not accorded to other employees”, and of being “accorded differential treatment”. The question for the Tribunal is, if such treatment is proven, whether it was “on the ground of” Mr Murphy’s race, or of his allegation of race discrimination. The Tribunal was concerned to ensure that Mr Murphy, representing himself, was aware of what he had to establish to succeed in claims of race discrimination and victimisation. The Tribunal’s own questions to Mr Murphy were intended in part to give him the opportunity to volunteer evidence in support of his allegations which would meet the tests in the ADA.

33 When the Tribunal invited Mr Murphy to identify anything said or done which would indicate a ground for the treatment he complained of, Mr Murphy repeatedly volunteered his belief that it was his unwillingness to be complicit in what he believed was a staff conspiracy to steal from David Jones.

34 When Mr Murphy was asked explicitly if he could point to anything that would indicate that any of the conduct he complained of was on the ground of his race, Mr Murphy identified the comment by Ms Hullick. As to the other incidents of which he complained Mr Murphy observed at the time, and later in his submissions, that what he was being asked to prove is what is in another’s mind, and that that was a hard thing to do.

35 Mr Murphy hit the nail on the head. That is just what he must prove, and the Tribunal recognises that it is difficult. It is notoriously difficult, enough perhaps to warrant a policy discussion about the manner in which the legal tests for discrimination laws are drafted (see eg Dutt at paras 47-86). ‘Proving is what is in another’s mind’ is, however, the obligation on a complainant, and on Mr Murphy in this case.

36 But for the allegation that Ms Hullick used a derogatory race-based term, there is no direct evidence that any of the conduct alleged by Mr Murphy, assuming it to have been less favourable treatment, was on the ground of his race (race discrimination), or that any of the conduct, assuming it to have caused him detriment, was on the ground that he had complained of race discrimination (victimisation). Instead, Mr Murphy must rely on the Tribunal’s drawing inferences from the evidence.

37 The fact that Mr Murphy is of African American race is not itself a sufficient basis, in the circumstances of this matter, for an inference that less favourable treatment of Mr Murphy was on the ground of his race. It would, in a different approach to discrimination, be enough to shift the onus to David Jones to prove that the less favourable treatment of Mr Murphy was not on the ground of his race (see eg the discussion in Dutt at paras 75-76), but that is not the approach this Tribunal has taken to proceedings under the Anti-Discrimination Act.

38 Similarly, proximity in time is not itself, in the circumstances of this matter, sufficient for an inference that treatment which caused Mr Murphy detriment was on the ground of his having complained of victimisation.

FINDINGS

1. Security licence

39 In his complaint to the Anti-Discrimination Board Mr Murphy alleges that

On 5 November 1997 I was dismissed from my employment with David Jones as I had paid for the renewal of my security licence yet the new plastic card had not yet been issued. I sought . . . that I be redeployed . . . or that I be given leave with pay until my plastic card issued. . . . I was dismissed . . . I believe I was treated in a different manner to . . . Ms Hullick . . .

40 He says that

On or about 15 November 1997 my plastic card security licence was issued . . . I received [it] on or about 1 or 2 December 1997. I recommenced my employment with David Jones on 8 December 1997.

41 David Jones agrees that there was a “temporary termination” of Mr Murphy’s employment on 5 November. Having regard to the evidence, particularly the documentary evidence filed by David Jones and marked Exhibit ‘A’, we are satisfied that Mr Murphy’s employment was terminated on that day. The reference to ‘temporary’ is a reference to an agreement negotiated between David Jones’ and Mr Murphy’s then legal representatives. It was agreed that Mr Murphy’s employment was terminated and that he would be paid his entitlements to that date; he would be re-employed on or before 2 January 1998 if he presented with an appropriate current security industry licence. We are satisfied that the conduct of which Mr Murphy complains occurred: his employment was terminated.

42 To assess whether this conduct amounted to less favourable treatment we must identify the relevant circumstances of the conduct. We have considered the oral evidence and documentary evidence, particularly documents in Exhibit ‘A’. The relevant circumstances are these. Mr Murphy’s security industry licence had expired on 21 July 1997. Mr Murphy had not applied for its renewal prior to its expiration. From 21 July Mr Murphy was unlicensed and was not an applicant for a licence. He applied for ‘renewal’ of his licence on 30 October 1997.

43 The Security Industry (Protection) Act 1985, and the Security Industry (Protection) Regulation 1986, which were then in force provided that a licence was current for a year and could be renewed. Although there were provisions with certain time periods, such as requiring surrender of a licence within 14 days of its expiration and allowing appeals against refusals within 21 and 60 days, there appears to have been no explicit provisions which allowed a licence holder to maintain licensed activities after expiration of a licence while an application for renewal was pending. Such an allowance does however appear to have been the practice and, even if it was not the practice, we are satisfied that David Jones believed at the time that it was.

44 There is no evidence of an actual comparator for purposes of s7(1)(a) ADA, that is, of a person not of Mr Murphy’s race who was in the same circumstances, or in circumstances which are not materially different. Mr Murphy says that Ms Hullick was such a person. We are satisfied on the evidence however that Ms Hullick was not in the same or materially similar circumstances.

45 It is true that, at the time that David Jones’ conduct in relation to Mr Murphy occurred, Ms Hullick’s security licence had expired. But hers had expired only in October 1997 and she had applied for renewal before its expiration. She was, on 5 November 1997 a person who, unlike Mr Murphy, had an application for renewal pending and who was, or was thought by David Jones to be, able to continue her duties under the Security Industry (Protection) Act.

46 There being no actual comparator we must consider a hypothetical comparator: did David Jones treat Mr Murphy less favourably than in the same circumstances, or in circumstances which are not materially different, it would have treated a person of a different race?

47 We are satisfied that David Jones would have treated any person who was in Mr Murphy’s circumstances – that is, unlicensed under the Security Industry (Protection) Act – in some way that would have removed them from performing their security duties. But would it have terminated the employment of such a person?

48 Mr Murphy had offered, through his legal representatives, to take leave with pay or to perform other duties until he was reissued with a licence. David Jones’s position was that his employment would be terminated with the option of being re-employed: the ‘temporary’ termination. Mr Farrell gave evidence that other duties were not available.

49 There is no evidence of any policy as to how David Jones usually deals with such situations. There is no evidence of how David Jones has previously or since dealt with such situations. There is no evidence on which we could base an inference that Mr Murphy was treated less favourably from the way a person not of his race in the same circumstances would have been treated.

50 We are unable to find that in terminating Mr Murphy’s employment David Jones treated Mr Murphy less favourably than in the same circumstances, or in circumstances which are not materially different, it would have treated a person of a different race.

51 Accordingly this allegation is not substantiated.

2. The ‘boy’ comment

52 In his complaint to the Anti-Discrimination Board Mr Murphy alleges that

On 9 December 1997 I had a conversation with Ms Hullick wherein she referred to me as “boy” in what I regarded to be a derogatory manner.

53 The first question is whether Ms Hullick said the word “boy” in the circumstances alleged by Mr Murphy. Ms Hullick denies having done so.

54 On 9 December 1997 Ms Hullick arrived at work at the Pagewood store and went in to the security office. Mr Murphy was in the security office, on his first day back at work under his new employment. Ms Hullick and Mr Murphy had a conversation during which they argued. There were no witnesses to the conversation. Mr Murphy says that Ms Hullick said to him “You’d better get your act together boy”.

55 Ms Hullick immediately reported the argument to Ms Boyd and Mr Platteel in Ms Boyd’s office. Mr Platteel then accompanied Ms Boyd back into the security office where he spoke to Mr Murphy. Mr Murphy said to Mr Platteel that Ms Hullick had called him “boy”. Mr Platteel’s later file note records Ms Hullick saying “That is a lie. I did not say anything of the sort”, and Mr Murphy replying “Oh yes you did and I do not have to put up with it”.

56 The relationship between Mr Murphy and Ms Hullick had been strained since Mr Murphy commenced duties as Ms Hullick’s supervisor in August 1995. Ms Hullick said in her statement: “[t]here was friction between us from only a few days after [Mr Murphy] was on the job”. The ‘friction’ was apparent to Mr Platteel when he commenced work in September 1997. On 28 July 1997 Mr Newbold, David Jones’s then Loss Prevention Manager for NSW wrote a memo saying

The dislike between the two is clearly evident. The situation existing within the Department in Pagewood has clearly existed for some time – it goes back to the time of Murphy’s appointment . . .

57 That Mr Murphy found himself in the same workplace as Ms Hullick at all is surprising, in light of what David Jones knew of their working relationship. In his memo of Mr Newbold had written:

. . . Management has been aware of the [the dislike between the two] and in my view have not properly managed the problem. I do not see matters improving and I would recommend that consideration be given to the removal of one or both from the store and assigned to other duties.

58 There was an established history of antagonism between Mr Murphy and Ms Hullick, and it was known to David Jones. Mr Farrell was aware of the history. The ‘friction’ was apparent to Mr Platteel when he commenced in August 1997. David Jones knew that that history included an earlier allegation by Mr Murphy of a derogatory race-based comment by Ms Hullick, and knew of a recommendation that Mr Murphy and Ms Hullick be separated. Despite this David Jones returned Mr Murphy to duties with Ms Hullick when they re-employed him.

59 Mr Murphy had made a previous allegation that Ms Hullick had made derogatory reference to his race. In his memo of 28 July 1997 Mr Newbold records an investigation into an allegation by Mr Murphy that a fellow employee had reported that Ms Hullick had made a derogatory reference to Mr Murphy’s race. The memo records the fact that two tapes of interviews were made. Those tapes are, David Jones advises, no longer available, a situation which is in the Tribunal’s view understandable and we make no criticism of David Jones, nor, more importantly, do we draw any adverse inference. The memo records the fellow employee saying that “to her knowledge she had never had a conversation with Hullick regarding the colour race or nationality of Murphy”. That is the extent of any evidence regarding Mr Murphy’s earlier allegation against Ms Hullick.

60 Whether Ms Hullick made the alleged comment to the fellow employee in about July 1997 would have some relevance to our assessment of the likelihood of her having made the alleged comment on 9 December 1997. But we are unable on the evidence to make a finding as to whether the earlier comment was made.

61 Mr Murphy has alleged that derogatory race-based comments were made by Ms Hullick on two other occasions. Mr Murphy did not report these at the time, but he recorded them in his letter of complaint to the Anti-Discrimination Board. They were not accepted as complaints by the President as they were out of time. Mr Murphy put this allegation to Ms Hullick in cross-examination and she denied them. David Jones was, during the course of Mr Murphy’s employment, unaware that he alleged that the comments had been made, and we are unable to make a finding as to whether the comments were made.

62 There is no suggestion that Ms Hullick said anything on 9 December 1997 which could have been misunderstood. She simply denies saying the word, and Mr Murphy alleges that she did. It is in the circumstances understandable that Ms Hullick, if she did use the word, would deny having done so. It is less easy to see a reason for Mr Murphy to have fabricated that particular allegation at that time. If he chose to fabricate an allegation of race-based conduct there is a host of much more explicitly race-based words which Mr Murphy could have attributed falsely to Ms Hullick. There were many occasions over a period of two years when Mr Murphy could have made allegations about Ms Hullick’s language to him.

63 We accept from Mr Platteel’s account, and that of Ms Hullick, that Mr Murphy was angry and upset when he made the allegation. There is no suggestion that Mr Murphy had any other apparent reason for being upset and behaving angrily. If Ms Hullick did not use the word ‘boy’ then Mr Murphy’s demeanour is unexplained.

64 In the circumstances and having regard to all the evidence, we are satisfied that, on balance, Ms Hullick did say the word ‘boy’ as alleged by Mr Murphy.

Is the conduct ‘less favourable treatment’ on the ground of race?

65 Was Ms Hullick’s use of the word ‘boy’ less favourable treatment of Mr Murphy?

66 To identify an actual comparator, the circumstances must be materially “the same”. The material circumstances in this matter include that Ms Hullick was speaking to a younger colleague with whom she had a long history of poor personal relations. There is no evidence before us of any actual comparator.

67 The comparison is necessarily hypothetical, and the question is whether Ms Hullick treated Mr Murphy less favourably than in the same circumstances, or in circumstances which are not materially different, she would have treated a person not of Mr Murphy’s race.

68 The treatment is the use of the word ‘boy’. The word is commonly used to describe a male person, of any race, younger than an adult. We are aware that it is used colloquially, and usually in the plural, to refer to male adults in much the same way as the word ‘girls’ is used to refer to a group of female adults. The word takes on a race-based meaning principally, if not only, when used in relation to a particular race: African Americans. Its race connotations come from the history of the enslavement of African Americans in the United States of America. Evoking that history, the use of the word to refer to an African American is language which is, even in Australia, is notoriously associated with a patronising and demeaning attitude taken by a person who is not African American, most usually a white skinned person, to an African American.

69 For purposes of a comparison, as soon as ‘African American’ race is removed from the comparator’s identity, as it must be, use of the word ‘boy’ loses any possible racial connotation. Thus the concepts of “less favourable treatment”, and “the ground of the treatment”, are co-extensive: to ask whether use of the term ‘boy’ is “less favourable treatment” is to ask whether the term was actually used on the ground of race.

70 To use the word ‘boy’ when speaking to an African American is possibly, but not necessarily, conduct grounded on race. It could only not be so if its use was grounded solely on age, or on colloquial use, or both. Although Mr Murphy is younger than Ms Hullick, and Ms Hullick could have used the term ‘boy’ – more commonly ‘my boy’ or perhaps ‘boyo’ – to refer to him as a younger man or as a feature of her colloquial speech, she does not say that she did. She denies using the word at all. We have found that she did use the word. In the absence of any other explanation, a reasonable basis for Ms Hullick’s having denied using the word is that she was aware that its use signified conduct by her on the ground of race.

71 In our view it is more likely than not that a ground for Ms Hullick’s use of the word was Mr Murphy’s race.

72 Of the many possible comparators – a person in the same circumstances not of Mr Murphy’s race – one is a younger male person who is, as Ms Hullick herself is, white skinned and of English speaking background. Ms Hullick’s use of the word ‘boy’ in reference to such a person could not carry with it the derogatory race-based connotation it did when it was used in reference to Mr Murphy. Its use was therefore less favourable treatment of Mr Murphy’s on the ground of his race, and so was discrimination within the meaning of s7(1)(a) of the ADA.

Finding

73 Mr Murphy was subjected to this discrimination by a work colleague, and in the course of his employment. Mr Murphy was therefore discriminated against in the terms or conditions of employment which David Jones afforded him, and the discrimination was thereby unlawful conduct (s8(2)(a)).

3. The ‘financial hurt’ comment

74 In his complaint to the Anti-Discrimination Board Mr Murphy alleges that

I mentioned to Mr Platteel the fact that [in relation to the security licence] I have been put off work without pay whilst other employees were treated differently and Mr Platteel leaned close to me and said to me “yeah – I did – and I hope to hurt financially”.

75 Mr Platteel denies that he said this. If he had acknowledged some conversation regarding Mr Murphy’s being out of work it might have been open to the Tribunal to say that a remark about financial loss was misunderstood by Mr Murphy. But Mr Platteel says “I said nothing of the sort . . . I had no conversation with Emmett about whether or not there was any financial detriment in him being out of work for the non-renewal of his security licence”.

76 If made, the remark clearly carried some ill will or malice towards Mr Murphy. We make no finding however on whether the remark was made as, in our view on the evidence, no finding of unlawful conduct could follow.

77 There are two bases on which the alleged comment could be unlawful: race discrimination, and victimisation.

78 In relation to race discrimination, the comment, if it was made, could not, on the evidence, amount to “less favourable treatment on the ground of race ”. There is no actual comparator – someone not of Mr Murphy’s race in the same circumstances – for purposes of assessing “less favourable treatment”. Nor is there evidence from which we can infer that a hypothetical comparator would have been treated differently. Even if we could say that Mr Murphy was treated less favourably in the same circumstances as a comparator, there is no evidence from which we can infer that Mr Murphy’s race was a ground for the comment being made.

79 In relation to victimisation, if the comment was made then there is no evidence that the comment resulted in any detriment to Mr Murphy within the meaning of the ADA. Even if there was detriment then there is no evidence, nor any reasonable inference, that the comment was made on the ground of Mr Murphy’s having alleged race discrimination.

80 Accordingly this allegation is not substantiated.

3. Investigation of the complaint

Did the conduct occur?

81 In his complaint to the Anti-Discrimination Board Mr Murphy says that

I reported this incident [use of the word ‘boy’] to Mr Platteel who told me he would investigate the matter. Later Mr Platteel informed me that he had spoken to Ms Hullick and told me that my complaint had no “merit”.

82 Mr Platteel says in his statement that he told Mr Murphy that he “was unable to establish his complaint” concerning Ms Hullick’s comment. Whether he said this, or that Mr Murphy’s complaint ‘had no merit’, either comment reflects Mr Platteel’s conclusion, based on his investigation, that he could not establish that Ms Hullick had said the word ‘boy’.

83 There are two bases on which the conclusion Mr Platteel reached could be unlawful: race discrimination, and victimisation. It would be race discrimination if in arriving at the conclusion that the complaint had no merit he treated Mr Murphy less favourably on the ground of race. It would be victimisation if arriving at the conclusion he caused Mr Murphy detriment on the ground of Mr Murphy’s having alleged race discrimination.

84 Mr Platteel’s conclusion was in our view both inadequate and unfair, assessed against reasonable expectations in the circumstances and against David Jones’s own policy. The evidence does not however enable us to say that it amounted to race discrimination or victimisation within the meaning of the ADA.

85 The way in which Mr Platteel reached the conclusion is best illustrated by a brief account of Mr Platteel’s relevant activities.

86 9 December 1997 was the day on which Mr Murphy returned to work at David Jones after his employment had been terminated in November. Mr Platteel heard the allegation of the use of the word ‘boy’ from Mr Murphy at 9.25am, and directed Mr Murphy to attend Ms Boyd’s office immediately. Mr Murphy did not attend as directed, but did do so about an hour later. Mr Platteel’s file note sets out his version of what occurred:

. . . Annette said "we would like to speak . . . " Emmett interrupted and said, "no, I've got nothing to say to either of you." and opened the door and started to walk out. Annette said "Emmett I want to go through your obligations". Emmett opened the door and whilst walking out said "I do not have to speak with anyone about anything." I followed Emmett out into the main office area and . . . said, "Emmett we just want to go through your job description and your roles with the company." Emmett said "I don't have to speak with you about that." I said, "Emmett do you want to perform the duty of loss prevention supervisor in this store?" Emmett said, "yes." I said, "well then we need to go through a whole range of duties I want you to perform. " Emmett walked past me toward the loss prevention office muttering something under his breath that I could not understand. Annette Boyd and I followed him to the loss prevention office where Annette said to him, "Emmett if you want to perform the loss prevention supervisor's job then we need to go through your job description and I want to go through some of your responsibilities whilst working for us. Emmett said, "that's ok, that's all I'm talking about I’m not talking about anything else without my attorney present ."

The three of us then walked back into Annette's office. In the office "Emmett said to me, "I raised a complaint to you about that woman, you are my supervisor and you did nothing."

In the office we then went through Emmett's roles and responsibilities . . .

87 Ms Boyd’s file note of the same date records this meeting in general terms, referring only to the discussion regarding Mr Murphy’s duties and obligations.

88 A file note later the same morning by Ms Boyd records that

Emmett did not come back from his morning tea break until Robert Platteel radioed him . . .

At lunch break he did not tell either Sue Rob or myself that he was going.

I asked him into my office that afternoon and mentioned again that he was to tell me when he left the floor for lunch break . . .

89 At 3.40pm the same day Mr Platteel and Ms Boyd again met with Mr Murphy and spoke to him about his apparent failure to have reported his absence for lunch. At that meeting Mr Murphy wore sunglasses, and was asked not to wear them in the store. Mr Murphy objected, saying at one stage, according to Mr Platteel’s file note, “this is just petty”. Later the same day Mr Platteel wrote a memo to Mr Murphy pointing out that his wearing sunglasses while on duty was not within David Jones’s dress code.

90 At 5 pm on the same day Mr Platteel interviewed Ms Hullick. His file note of the interview records that he asked Ms Hullick whether she said ‘boy’ to Mr Murphy, and that she said “No that [sic] not true, I did not say boy”.

91 Two days later, on 11 December, Mr Platteel spoke to Ms Hullick “regarding the behaviour I expected of her”. On 12 December Mr Platteel spoke to Mr Murphy, in the presence of Mr Murphy’s solicitor, about the need for Mr Murphy to arrive at work on time. Mr Platteel’s recollection is that “there was a brief conversation about Emmett’s allegation of discrimination and victimisation and the feeling was that the complaint had been put to rest”.

92 David Jones appear to have had in place a workplace policy in relation to ‘Equal Opportunity, Discrimination, and Harassment’. It is unclear from the evidence whether the version of the policy in evidence and relied on by David Jones was the same as the one in place in December 1997, or a later version. In December 1997 Ms Boyd was the designated “harassment/discrimination officer (HDO)” as the position is described under the policy. Ms Boyd was uncertain which version of the policy was in place in late 1997.

93 The policy relied on in evidence by David Jones says that “the names and extension numbers of the HDO . . . will be provided to you and posted on all staff notice boards”; Mr Murphy’s evidence was that he was unaware who was the HDO, and that he was not told during his induction on returning to work in December 1997. He points to the Statement of Understanding he signed at the conclusion of his induction which does not refer to the issue except to confirm that he has “understood and agree[d] to abide by the policies of David Jones”. Ms Boyd agreed that she had not told Mr Murphy that she was the HDO. In her letter to Mr Murphy dated 4 December 1997, which advised of employment terms and conditions, Ms Boyd did not introduce herself as the HDO.

94 When giving his evidence Mr Platteel did not recognise the term ‘HDO’; he was unaware that Ms Boyd had at the relevant time been the HDO. He knew that she was the Human Resources manager.

95 The policy relied on in evidence by David Jones sets out a complaints procedure which says that the HDO “will attempt to resolve the matter through conciliation”. It says further that “[i]f an attempt at conciliation has failed, the HDO will commence an investigation into the allegations of harassment/discrimination”. Ms Boyd did nothing in relation to Mr Murphy’s complaint except to participate as requested in Mr Platteel’s investigation. There was no attempt at conciliation.

96 Mr Farrell appeared to misunderstand the requirements of the policy when in his statement he said that Mr Murphy “never formally filed a grievance in terms of either the grievance policy or the Equal Employment Opportunity Discrimination and Harassment policy”. Mr Farrell said that “[t]he fact that [Mr Murphy] made a verbal complaint was enough for David Jones to ensure that his complaint was fully investigated”. The policy relied on in evidence by David Jones requires no more of an employee than that they make their grievance “clear to the perpetrator” and that they obtain “advice and assistance” from the HDO.

97 Immediately on Mr Murphy’s returning to work he and Ms Hullick argued. The comment ‘boy’ was made and complained of. Mr Platteel and Ms Boyd, however, considered it a priority at the time to deal with industrial aspects of Mr Murphy’s employment. Mr Murphy’s complaint was unambiguous. He repeated his concern that his complaint was not being investigated, and still he was ignored. Mr Murphy’s insistence that he speak in the presence of a lawyer may have delayed Mr Platteel’s investigation, which itself was precipitous in terms of David Jones’s policy, but it did not disentitle Mr Murphy to a proper investigation.

98 Mr Platteel’s evidence was that Mr Murphy was acting aggressively; he “was out of control”. Mr Platteel felt that Mr Murphy’s complaint of race discrimination could be dealt with later, but that the priority was to “re-establish the employer-employee relationship”. It is true that, to the extent that Mr Murphy’s complaint of Ms Hullick’s comment was acted on, Mr Murphy was not co-operative. He was angry and upset, and it appears from the evidence that his anger was compounded by David Jones’s insistence that he be told in some details his own employment obligations before any action was taken in relation to his complaint.

99 In our view Mr Platteel’s determination to re-establish the employer-employee relationship, with the support of Ms Boyd, was at the expense of dealing appropriately with Mr Murphy’s complaint of race discrimination. Mr Platteel’s conclusion, reached on the basis of his investigation, was not reached in accordance with David Jones’s policy, was not reached reasonably in light of Mr Murphy’s expectation of an interview, and was not reached reasonably in light of the priority placed on reminding Mr Murphy of his employment obligations. Mr Platteel conceded in his evidence that that he could dealt with Mr Murphy’s complaint differently.

Is the conduct ‘less favourable treatment’ on the ground of race?

100 We must ask how someone not of Mr Murphy’s race would have been treated in the same circumstances. The “same circumstances” include that Mr Murphy was returning to the same duties he had performed, until weeks beforehand, for two years. He had been in conflict previously with Ms Hullick. He was acting aggressively and was disobeying directions from a superior. He had had an argument with a fellow employee. The circumstances also include Ms Boyd’s failure to act in her role as HDO, the lack of awareness of the discrimination policy and process on the part of Ms Boyd, Mr Platteel and Mr Farrell, the determination to assert control and to “re-establish the employer-employee relationship”.

101 While David Jones’s treatment of Mr Murphy in December 1997 was, in our view, unfair against the considerations we have set out above. David Jones’s management practices at the time, in relation to complaints of discrimination, appear to us to have been such that it is likely that someone not of Mr Murphy’s race would in the same circumstances not have been treated differently. We are therefore not satisfied that the treatment of Mr Murphy, whatever else might be said of it, was “less favourable treatment” within the meaning of the ADA.

102 In relation to victimisation, the treatment did in our view result in detriment to Mr Murphy within the meaning of the ADA. But there is no evidence, nor can we infer, that the treatment was on the ground of Mr Murphy’s having alleged race discrimination.

103 Accordingly this allegation is not substantiated.

4. The ‘Mind your own business’ comment

104 In December 1997 Mr Murphy investigated a theft at the request of the Dock Manager. He was later told by Ms Hullick that he should ‘mind his own business’. Mr Murphy’s evidence was that he “didn’t play ball”, and that anyone who “didn’t play bal”’ would have been treated in the same way.

105 Although what Mr Murphy meant by ‘playing ball’ was implicit in the way he gave his evidence, cross-examination made clear that Mr Murphy’s allegation was that Ms Hullick was involved in some way in organised theft, hence her comment to him to ‘mind his own business’. Mr Murphy’s reference to ‘not playing ball’ was a reference to his not taking part in or supporting the organised theft.

106 Mr Murphy gave extensive evidence about his belief that he was treated in a particular manner because of his knowledge about organised theft among the staff. He said that it was because of his knowledge about what was going on that attempts were made to ‘weed him out’. He said that he “stepped on people’s toes”, and that staff at David Jones wanted him to leave because of “what was going on”, what he knew, and the way he did his job.

107 The comment, if it was made, could not, on the evidence, amount to “less favourable treatment on the ground of race ”. There is no actual comparator for purposes of assessing “less favourable treatment”, and no evidence from which we can infer that a hypothetical comparator would have been treated differently. Even if Mr Murphy was treated less favourably, there is no evidence to support an inference that Mr Murphy’s race was a ground for the comment being made.

108 In relation to victimisation, Mr Murphy certainly considered himself ‘victimised’ in a general sense: that is, that he was treated in a particular way because of a view or attitude he had. Mr Murphy’s evidence is that he was treated in a particular way by Ms Hullick because of a view or attitude he had about staff involvement in organised theft. We make no finding as to the existence or not of organised theft: it is unnecessary to do so and there is insufficient evidence in any event. It is relevant only to say that Mr Murphy believed that there was organised theft, and that Mr Murphy felt strongly that he was treated unfairly because he acted on that belief.

109 In relation to victimisation under the ADA, however, there is no evidence that the comment if made resulted in any detriment to Mr Murphy within the meaning of the ADA. Nor is there any evidence, or reasonable inference, that the comment if made was on the ground of Mr Murphy’s having alleged race discrimination.

110 Accordingly this allegation is not substantiated.

5. Encounter with customer

111 On 17 December 1997 Mr Murphy was working on the floor of the David Jones store in Pagewood. Mr Murphy says that he was answering a query from a shopper in the store, Ms Browne, in the presence of a uniformed security guard. He says that Ms Boyd approached them saying to Mr Murphy that he should get back to the floor, that is: that he should get back to work. When asked by the security guard who she was, Ms Boyd said that she was the staff manager and that it was her job to “harass” the staff. Mr Murphy says Ms Boyd then told Ms Browne that Mr Murphy was not allowed to receive visitors and that the customer would need to leave the store.

112 In her evidence Ms Browne confirmed, to the best of her recollection, what she heard said.

113 Ms Boyd agrees that she said that it was her job to “harass” the staff, and says that it was poor choice of words which she immediately regretted. In Mr Murphy’s submission, Ms Boyd’s choice of words “is unbecoming of a person who would hold such a title [HDO]”.

114 Mr Murphy’s evidence was that to his knowledge Ms Boyd had never spoken like that to a comparable employee, Ms Hullick, and that Ms Boyd’s approach and use of word appeared to him to be premeditated ‘as if to get across the point that she was harassing him’ (Mr Murphy’s emphasis in his evidence).

115 The Tribunal asked Mr Murphy why, in his view, Ms Boyd was harassing him, and he answered that it was because he was “rocking the boat”. In so saying Mr Murphy was referring to the evidence he had given a short time earlier regarding his refusal to ‘play ball’ in relation to a staff conspiracy to steal.

116 In relation to his allegation Mr Murphy again believed that the treatment he received was on the ground that he was known to be aware of illegal activities by staff and he would not be complicit in them.

117 Even if the treatment was less favourable, or caused detriment, it is not Mr Murphy’s evidence that the treatment was on the ground of either his race, or his having alleged race discrimination. Nor can we see in the evidence any material which indicates that to be so.

118 Accordingly this allegation is not substantiated.

6. Investigation of missing money

119 On or about 8 January Mr Platteel interviewed Mr Murphy in the course of an investigation about money which was missing. Mr Murphy says that he was the first staff member questioned. Mr Murphy’s evidence is that the implication in Mr Platteel’s questions was that Mr Murphy was involved in the incident. Mr Murphy says that this was “ treatment not accorded to other employees”. Mr Platteel gave evidence as to how he conducted the investigation.

120 Mr Murphy gave evidence about what he believed to be the ground on which Mr Platteel treated him in the investigation. As he said in relation to Ms Boyd’s comments to him on the floor, Mr Murphy said that he was being “victimised” and “set up” “because I was rocking the boat”.

121 The adequacy of the evidence, and our conclusion in light of it, is the same for this allegation as for the previous one. Mr Murphy believed that the treatment he received was on the ground that he was aware of illegal activities by staff, and he would not be complicit. It is not Mr Murphy’s evidence that the treatment, even if was less favourable or caused detriment, was on the ground of either his race, or his having alleged race discrimination. There is in the evidence no material which indicates that to be so.

122 Accordingly this allegation is not substantiated.

7. Overtime

123 In early January 1998 Mr Murphy asked Ms Boyd for overtime and was refused it. He says that this was “differential treatment”.

124 The Tribunal heard extensive evidence from David Jones concerning rosters and the availability of overtime. David Jones intended establishing that a ground for the refusal was that there was no overtime available. If they could establish that the lack of available overtime was the only ground for the refusal they would have answered Mr Murphy’s claim. If they could establish that the lack of available overtime was a ground for the refusal then they would not negate the possibility that a further ground was also either Mr Murphy’s race or his having alleged race discrimination.

125 Mr Murphy’s evidence was that he believed that he was not given overtime “because they knew I was going to resign”.

126 There is no evidence that the treatment, if it was less favourable, or caused detriment, was on the ground of either Mr Murphy’s race, or his having alleged race discrimination.

127 Accordingly this allegation is not substantiated.

DAMAGES

128 Mr Murphy was clearly angry, and was upset by the unlawful conduct. He suffered no physical harm, and there is no evidence that he suffered any psychological harm. In assessing damages the Tribunal has taken account of the circumstances, of Mr Murphy’s evidence, and of awards of damages in comparable cases. We have assessed the sum of $1,000 as an appropriate award of damages.

ORDERS

1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.

2. The complaint of victimisation is dismissed.

3. The respondent shall within 28 days pay to the complainant the sum of $1,000 by way of compensation for loss and damage.