Riley v Western College of Adult Education

[2002] NSWADT 210

CITATION:	Riley -v- Western College of Adult Education [2002] NSWADT 210
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bernadette Yhi Riley RESPONDENT Western Collge of Adult Education
FILE NUMBER:	001042
HEARING DATES:	26/11/2001 - 28/11/2001 15/04/2002
SUBMISSIONS CLOSED:	04/15/2002
DATE OF DECISION:	10/25/2002
BEFORE:	Rice S - Judicial Member; Alt M - Member; Mooney L - Member
APPLICATION:	Race Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Sivananthan -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Dutt v Central Coast Area Health Service [2002] NSWADT 133 (under appeal) Djokic v Sinclair & Central Qld Meat Export Co. Pty Ltd [1994] HREOCA 17 Rugema v Gadsten P/L & Derkes [1997] HREOCA 34 Bachleda v Associated Steamships P/L and Piesik [1997] HREOCA 48
REPRESENTATION:	APPLICANT I Byrne, barrister RESPONDENT E Brus, barrister
ORDERS:	1. Pursuant to s113(1)(a) the complaints are dismissed; 2. Pursuant to s114(1), each party shall pay their own costs.

1 For the reasons given below the Tribunal finds that Ms Riley’s complaints of race discrimination and victimisation are not substantiated. Accordingly, the complaints are dismissed.

Background

2 Ms Riley is an Aboriginal woman. She was employed by the Western College of Adult Education (WCAE) as the Aboriginal Programs Manager. She was employed under a short term contract from 2 March 1998 until 29 May 1998, and then under a three year employment contract, subject to certain conditions discussed below.

3 On 23 October 1998 Ms Riley complained to the Anti-Discrimination Board of race discrimination in employment, and victimisation. In a letter to the Anti-Discrimination Board of 16 February 1999 Ms Riley provided further details of her complaints.

4 By letter dated 7 August 2000, acting under s94(1) of the NSW Anti-Discrimination Act (‘the Act’), the President referred Ms Riley’s complaints of race discrimination and victimisation for inquiry by the Tribunal.

Provisions of the Anti-Discrimination Act

5 Ms Riley complains of discrimination under s 7(1)(a) of the Act:

A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race . . .

6 Ms Riley claims that that discrimination was unlawful under s8(2) of the Act:

It is unlawful for an employer to discriminate against an employee on the ground of race:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment

7 In addition Ms Riley claims that she was subject to victimisation under s50(1) of the Act:

It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:
. . .
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
. . .
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

8 In Points of Claim Ms Riley provided particulars of conduct in the workplace. In Points of Defence the WCAE admits some of conduct of which Ms Riley complains and denies some. The WCAE denies that any conduct was less favourable treatment on the ground of race.

9 In her Points of Claim Ms Riley alleges discrimination on the ground of disability. If such a complaint was made to the Anti-Discrimination Board it was not referred by the President of the Board to the Tribunal. The Tribunal has no jurisdiction in this matter in relation to a complaint of disability discrimination, and Ms Riley did not pursue this claim in the inquiry.

10 The Tribunal heard evidence from Ms Riley. For the WCAE the Tribunal heard evidence from Ms Palmer, Ms Gesler, Ms Allen and Mr Borg.

Conduct in the workplace

11 A group of Ms Riley’s allegations relate to conduct which, she says, took place in her sight and hearing during her work. Specifically, Ms Riley alleges that:

Ms Gesler said to her that she had money "chucked" at her when seeking funds for Aboriginal courses whereas Ms Gesler was "persistent"

Ms Gesler said to her that her partner "looks like he comes from a good Aboriginal family" in Bourke, and she was told the names of ‘good Aboriginal families’ in Bourke

Ms Gesler said to her that it was "trendy" to identify as Aboriginal

Ms Gesler challenged her over her use of the word ‘shame’ in a discussion with another Aboriginal person

she overheard Ms Gesler say "Aboriginal people are all the same; they want everything paid for". Ms Riley did not comment on or report this remark. She was upset by it and left the office under the pretext of attending a funeral.

12 Further, Ms Riley alleges that:

she heard Ms Allen refer consistently to Aboriginal people, and other non-Anglo people, as "those people"

Ms Allen made a point of closing doors on a room in which an Aboriginal child was playing in the WCAE, and afterwards said that that child was the naughtiest child she had ever met. Ms Riley never observed Ms Allen conduct herself in this way in relation to other children who came into the WCAE

Ms Allen said to her that "there is no such thing as discrimination, racial or otherwise".

13 Further, Ms Riley alleges that:

in a discussion concerning the eligibility of course of study for Abstudy/Austudy grants, Ms Palmer said to her that Aboriginal people only do courses in order to be paid to do so, rather than to improve themselves. Ms Palmer does not recall this conversation

when she brought the comments of Ms Gesler and Ms Allen to Ms Palmer’s attention, Ms Palmer said to her was told that she was "over-sensitive", or had misinterpreted the comments

Ms Palmer said to her that Aboriginal programs for which she, Ms Riley, had responsibility are too problematic and are unmanageable

when she attempted to explain a historical context for the offensiveness of comments regarding Aboriginal people Ms Palmer said to her "that is all history"

she raised with Ms Palmer her concerns about Aboriginal tutors’ having to pay for training which they could not easily afford, and was told that Aboriginal people should be treated the same as everybody else

Ms Palmer decided to employ a non-Aboriginal tutor for an Aboriginal program without consulting Ms Riley

Ms Palmer said to her that she did not trust an Aboriginal person who worked at another agency, and told Ms Riley of her intention to establish his dishonesty

she was asked by Ms Palmer, on an occasion when they travelled together, if it is "a cultural thing for Aboriginal people to drink at funerals"

Ms Palmer said to her that her predecessor would take days at a time off to attend funerals and drink. She was asked by Ms Palmer how much time she, Ms Riley, would take off work to attend the funeral of someone not directly related to her

Ms Palmer made comments to her about her family dropping into the WCAE. Ms Riley is not aware of an issue being raised concerning the visits of other employees’ family members to the WCAE.

14 We note that there was other conduct alleged more generally by Ms Riley: that she saw that Aboriginal people visiting the WCAE were treated less favourably than visitors who were not Aboriginal, and that she was told by other Aboriginal people that they felt unwelcome in the WCAE office. These allegations are not specific as to time, place, participants or details. We are unable to rely on only Ms Riley’s report of the experience of these other people, and there was no other evidence before us regarding any such conduct. We make no findings in relation to that conduct.

15 In any event, that conduct was directed not towards Ms Riley but towards others, so the allegations are irrelevant to a claim Ms Riley makes about her being subjected to discriminatory treatment. The conduct, if established, would have some relevance to a claim of discriminatory terms and conditions of employment.

Did the conduct occur?

16 Ms Allen acknowledges the conduct alleged against her, although she has an explanation for it or a description of the circumstances in which it occurred. Ms Gesler does not deny most of the conduct alleged against her, in her evidence tending to say that she could not recall. When she does deny conduct, she does so by inference rather than directly: she says that ‘she would not speak like that’. Ms Gesler says for example that she would not have used the word ‘trendy’. But Ms Palmer’s evidence is that Ms Riley made immediate complaint of Ms Gesler’s using just that word. Against Ms Riley’s evidence, and corroborative indications such as the one just referred to, we are not persuaded by Ms Gesler’s claim that she would not use such language.

17 Ms Palmer agrees that she said that Ms Riley might have been oversensitive, but only on the occasion of Ms Riley’s complaint about Ms Gesler’s reference to ‘trendy’. She agrees too that she said "that is all history", but says that the comment related to incidents which occurred in the WCAE, and reflected her view that "once an incident has occurred you learn from it and move on".

18 Ms Palmer agrees that she expressed the view that Aboriginal people should be treated the same as everybody else, but points out that she then took steps to accede to Ms Riley’s request that some allowance be made for Aboriginal tutors’ circumstances. She does not address the allegation that she decided to employ a non-Aboriginal tutor for an Aboriginal program without consulting Ms Riley, but says generally that she involved Ms Riley in "many decisions relating to the Aboriginal programs".

19 Ms Palmer agrees that she asked Ms Riley a great number of questions, including questions about funerals, as she was "interested in understanding these types of things". She denies discussing previous employees.

20 We are satisfied on balance that the conduct set out in paragraphs 11-13 above occurred as alleged by Ms Riley. Ms Palmer, in her written response to Ms Riley’s allegations effectively conceded that conduct of this nature took place. She said:

Any workplace is a reflection of the community that the people work in. When people feel that there are inequities for whatever reason, and feel that they are faced with it on as daily basis, they cannot help but react.

21 Ms Palmer’s explanation for the conduct is not in our view accurate or sufficient, but it suggests another consideration when referring to Ms Riley’s co-workers feeling "that they are faced with it on a daily basis".

22 It is clear from the evidence that Ms Riley was a co-worker who challenged the attitudes, assumptions and in some cases the established patterns of the workplace. She was a strong advocate for Aboriginal people; she was articulate, passionate, and politically aware. Ms Palmer recognised and respected Ms Riley’s "depth of pride and belief" in her culture. It appears that Ms Riley’s approach to her work was confronting for her co-workers, particularly after the much quieter approach of her predecessor. The WCAE staff reacted defensively to Ms Riley’s manner and the heightened awareness of Aboriginal issues which Ms Riley introduced to the workplace.

23 The result was that, far from there being an increased level of interest or constructive awareness of Aboriginal issues, as Ms Riley says was her intention, there was an adverse reaction to Ms Riley as the person responsible for raising them. The antipathy to Ms Riley was clear at the staff meeting on 7 September.

24 No blame attaches to anyone for this state of affairs, but it is important in this matter to set out the circumstances and dynamics of the workplace within which the conduct occurred, and to identify reasons beyond those volunteered by Ms Palmer for the conduct having taken place.

25 As set out above in set out in paragraphs 11-13, each of Ms Allen, Ms Gesler and Ms Palmer offers some explanation or qualification in relation to their conduct. But neither context nor intention are relevant to the question of whether or not the conduct constitutes unlawful discrimination. This question is, in terms of the Act, whether the conduct was less favourable of Ms Riley than treatment of a non-Aboriginal person was or would have been in the same circumstances.

26 Some of the conduct set out in paragraphs 11-13 above cannot be unlawful discrimination under the Act, as it was not directed to Ms Riley. Comments about other people, and actions towards other people did not, in the circumstances, constitute treatment of Ms Riley. That conduct cannot therefore be discriminatory treatment of Ms Riley, although it would be relevant to a claim that the terms and conditions of employment were discriminatory, which is discussed below.

27 Of the conduct which was treatment of Ms Riley, no single instance could in our view constitute discrimination within the meaning of the Anti-Discrimination Act. We cannot be satisfied that a person who was not Aboriginal would have been treated differently in the same circumstances from the way Ms Riley was treated. The conduct - for example the comment "Aboriginal people are all the same; they want everything paid for" - could in our view equally have been directed to a person who was not Aboriginal who was in the same circumstances. Those circumstances include that being the Aboriginal Programs Manager and in Ms Riley’s own words, relentless in enlightening her co-workers about Aboriginal issues

28 When there is no apparent reasonable ground for conduct a complainant might assert their belief that race is the ground as, for example, the complainant’s case was described in Sivananthan -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at paras 23 - 24. It may be however, and in this matter we think it is the case, that a complaint relies on more than mere suspicion or assertion: they invoke their own perception, their own sense of what the ground was for that conduct. When a complainant was present, and participated in the dynamics of a dealing or a relationship, they have an understanding of those dynamics which may, quite reasonably give them a sense of the ground for the conduct. This might come from tone of voice or inflection, body language, eye movement - indeed any combination of the senses with which humans read, assess and interpret their environment.

29 The issue for a complainant is whether their belief, based on such an experience, can be conveyed in the formal setting of a Tribunal hearing, in terms which satisfy rules of procedural fairness if not evidence, and so as to satisfy the technical requirements of the legislation.

30 In this matter Ms Riley has a strong sense that the conduct occurred because she is Aboriginal, and that a person who was not Aboriginal would not have been treated in the same way. That feeling, or sense, of why someone acts is a valid one and should not be disregarded. Often it is all that a person is able to rely on when claiming that conduct was on the ground of race. It is however an insufficient basis on which to prove race discrimination under the Anti-Discrimination Act. In the absence of any evidence that non-Aboriginal people were or would have been treated differently in the same circumstances there can be no finding of unlawful discrimination (see the discussion in Dutt v Central Coast Area Health Service [2002] NSWADT 133 (under appeal) at paras 82-84, 86).

31 That race was the ground for the conduct must be established as a matter of evidence. It has been the invariable practice in this Tribunal that the complainant has the evidentiary obligation. In this case there is no direct evidence that race was a ground for the conduct, and nor is there evidence on which an inference to that effect could reasonably be based.

32 As we said above, Ms Riley is in any event unable to meet the ‘comparative’ requirement of proving discrimination under the Anti-Discrimination Act. In our view, the conduct complained of can reasonably be said to be conduct which is as likely to have occurred, no more or less favourably, if Ms Riley, as Aboriginal Programs Manager and an articulate, committed advocate for Aboriginal interests, was not Aboriginal.

The conduct as evidence of terms and conditions of employment

33 Ms Riley has brought to the attention of the Tribunal persistent conduct which demonstrated views of Aboriginal people which were variously ignorant, inquiring, provocative, intolerant, and offensive. This is of concern in light of the aim of the Anti-Discrimination Act to "end intolerance, prejudice and discrimination in our community" (Hansard NSW Legislative Assembly 23 November 1976 p3337).

34 We have found that, in the circumstances, none of the various instances of this conduct constitutes unlawful discrimination against Ms Riley. Taken together, however, they raise the question of whether the terms and conditions of Ms Riley’s working environment were unlawfully discriminatory.

35 We have considered not only the evidence of the conduct occurring, but also the evidence regarding the operation of the workplace generally, and Ms Riley’s involvement in it. Although the question is raised by the evidence, in the circumstances we are not satisfied that the terms and conditions of Ms Riley’s employment, as they were affected by this conduct, amounted to what previous decisions have identified as a ‘hostile workplace’ on the ground of race (see, for example, Djokic v Sinclair & Central Qld Meat Export Co. Pty Ltd [1994] HREOCA 17; Rugema v Gadsten P/L & Derkes [1997] HREOCA 34; Bachleda v Associated Steamships P/L and Piesik [1997] HREOCA 48)

36 In the previous decisions the nature of the conduct has invariably been explicit insults, and personally offensive language gestures and conduct, directed at the complainant. In this matter the conduct was not explicitly insulting or offensive to Aboriginal people, nor was it directed to Ms Riley. While that may be a consideration, it is not clear that there is a prescription for the qualitative nature of the conduct which could reasonably cause an employee to feel that the workplace is ‘hostile’. The real issue is not whether each of the various incidents was in itself offensive or insulting or of a certain ‘seriousness’, but rather whether the incidents, taken together, resulted in an employer providing a workplace the terms and conditions of which were less favourable to the complainant on the ground of race.

37 The evidence satisfies us that, on balance, the terms and conditions of Ms Riley’s workplace resulting from the conduct identified above were not less favourable treatment on the ground race. Ms Riley was not unhappy in her work. She enjoyed her work, she wanted to do her work, she went willingly to work, and her work was unaffected by the conduct. She enjoyed civil relations with her colleagues.

38 Ms Riley did give evidence that she felt excluded. There was, as we noted above, a degree of resentment among her colleagues at her strong and consistent advocacy for Aboriginal people and issues, and it is not surprising that she had a sense of being excluded. The extent to which she felt excluded is not, in our view having regard to the evidence as to her work and that of her colleagues, sufficient to constitute a hostile workplace such that the terms and conditions were discrimination on the ground race. For example, the meeting of 7 September, discussed in more detail below, was Ms Riley’s last day in the workplace, but was the first and only occasion when Ms Riley reacted with distress to the conduct of her colleagues.

39 Ms Palmer says that when Ms Riley reported the race-based comments she was not complaining about them. She was telling Ms Palmer, showing her that these were comments that "have the potential to upset an Aboriginal person". They were "statements, not complaints". Ms Palmer says that Ms Riley declined her offer to say anything or to facilitate a staff discussion. She says that she respected Ms Riley’s wish that the matters not be raised with staff. She raised the ‘those people’ comment with Ms Allen because she heard it herself.

40 We are not satisfied that Ms Riley complained of the conduct in terms that asked the employer, through Ms Palmer, to intervene and moderate or prevent the conduct. Ms Riley’s reporting of the conduct to Ms Palmer was in terms that identified the conduct as a phenomenon; Ms Riley effectively observed on the conduct as a basis for engaging in a discussion about attitudes and conduct to which Aboriginal people generally are subject.

41 We have considered that it is possible that in so doing Ms Riley was in fact making a complaint. We are not satisfied that this was the case: we observed, and the evidence bears out, that Ms Riley is an articulate person with strong views which she expresses readily and clearly. We are confident that Ms Riley would have been able, if she wanted, to complain about the conduct in terms that reflected her own unhappiness, in much the same way that she did raise issues concerning her computer and her wage level. In any event, we are not satisfied that if what Ms Riley did was to complain, Ms Palmer would have responded differently to a non-Aboriginal person.

42 This might be a convenient point to address a prominent but largely irrelevant piece of evidence – the Attendance Book. Ms Riley relied on it to show that she was not included in the workplace because she, unlike other employees, was not invited to sign in and sign out. As well, aspects of the entries in the book were relied on by counsel for Ms Riley to attack the credibility of witnesses. In our view the Attendance Book was an inappropriate vehicle for these either of these purposes. We are satisfied from the little evidence we heard from those with direct involvement in maintaining the book that it is an account, of uncertain reliability, of the attendance of some members of staff for purposes of calculating pay by reference to days worked and taken off. It has no more relevance than that in these proceedings.

Decisions affecting Ms Riley

43 Separately from the allegations about conduct generally in the workplace, Ms Riley made allegations of conduct which was constituted by decisions concerning the terms and conditions of her employment.

44 As a general observation, we are satisfied that for each allegation the WCAE has established a ground for the treatment which is a ground other than Ms Riley’s race. In some instances there is room to argue that Ms Riley’s Aboriginality might also have been a ground for the treatment. But in no instance can we say that we are satisfied that that is the case: there is either evidence of a comparator which establishes that Ms Riley was not subjected to less favourable treatment, or there is no evidence on the basis of which we can infer that she would have been treated less favourably on the ground of her race.

Being provided with conditions of employment

45 Ms Riley says that on being employed she was not provided with the terms and conditions of her employment. The allegation is complicated by the fact that Ms Riley was employed on a short-term contract basis before being engaged on the three year contract. Ms Palmer’s evidence is that Ms Riley was told of, and had continuing access to, the staff policy manual. We accept Ms Palmer’s evidence that she did bring to Ms Riley’s attention the terms and conditions of her employment. If, on an interpretation of the facts, Ms Riley is nevertheless able to say that the terms and conditions were not actually or effectively provided to her, there is no evidence that this treatment was on the ground of Ms Riley’s being Aboriginal.

Being provided with copy of the grievance procedure

46 Ms Riley says that she was not provided with a copy of the grievance procedure. Ms Riley had access to the staff manual in which the grievance procedure was, and we are satisfied that she was effectively provided with a copy on her being employed. If, on an interpretation of the facts, Ms Riley is nevertheless able to say that the grievance procedure was not actually or effectively provided to her, there is no evidence that this treatment was on the ground of Ms Riley’s being Aboriginal.

47 Ms Riley complains that when she later requested a copy of the grievance procedure, because she was no longer at the workplace, she was not provided with one. Certainly there was inordinate delay in answering her request - from 10 September to 10 November. No explanation has been offered for this delay, but Ms Riley’s suggested explanation - her race - is not so compelling, not even more likely than other possible explanations, that we can say without evidence that the delay was on the ground of her race.

Time in lieu

48 Ms Riley says that Ms Palmer refused her permission to take time in lieu. Ms Riley refers to the provision in her employment contract which provides that "If the position requires the performance of tasks outside [35] hours, arrangements must be made for taking time off in lieu".

49 Ms Palmer admits that permission was refused, but says that the refusal was on the ground of Ms Riley’s not having satisfied the requirement for time in lieu - she had not performed tasks outside her prescribed hours.

50 A particular occasion Ms Riley complains of is her attendance at a conference in Sydney. At the conference Ms Riley was, she felt, subjected to racist conduct. She was upset by this and, instead of attending the conference on the Saturday, drove home to Dubbo. On the Monday when Ms Riley telephoned to ask for time in lieu, Ms Palmer told her to attend that afternoon, effectively allowing a half day time in lieu.

51 Ms Palmer was aware that Ms Riley had not in fact attended the conference on the Saturday afternoon but instead had travelled back to Dubbo. Ms Palmer does not suggest that Ms Riley did not have good reason to do as she did, but says that Ms Riley was not entitled to time in lieu.

52 Ms Palmer can reasonably point to a contractual condition under which an entitlement to time in lieu is available, and to her view that that condition had not been fulfilled, as a ground for her decision. Whether the decision was a fair one, or was ‘good management’, is not for us to say. We are satisfied that the conditional availability of time in lieu, and Ms Palmer’s judgment as to whether that condition was satisfied, was a ground for refusing Ms Riley time in lieu.

53 There remains however a question whether Ms Riley’s Aboriginality was also a ground for the decision. As there is no evidence of a comparator - a person not of Ms Riley’s race in the same or materially similar circumstances - we look for evidence on which we can infer that Ms Riley would have been treated less favourably than such a person .

54 While Ms Riley may feel aggrieved that Ms Palmer didn’t exercise her discretion more favourably in the circumstances, we are unable to infer that her failure to do so was on the ground of Ms Riley’s Aboriginality.

55 Ms Riley says that because she had no entitlement to time in lieu she had limited access to courses and other benefits in the course of her employment. We are not satisfied that the refusal of time in lieu was on the ground of Ms Riley’s Aboriginality, but in any event, there was no evidence of Ms Riley’s having sought time in lieu for attending such courses, or of her having decided not to attend such a course because of any restriction she perceived on the availability of time in lieu.

Attending management meetings

56 Ms Riley says that she was not invited or permitted to attend management committee meetings. We are satisfied that that was the case for all employees but for Ms Palmer, who was the WCAE manager attending ex officio, and for Ms Allen who attended as the minute taker. Neither Ms Palmer nor Ms Allen are comparable employees to Ms Riley in the circumstances. Ms Gesler was however in comparable circumstances. Ms Gesler is not of Ms Riley’s race and she, like Ms Riley, was not permitted to attend management committee meetings. We are satisfied that not permitting Ms Riley to attend management committee meetings was not less favourable treatment of Ms Riley.

57 In particular Ms Riley alleges that she was made aware of ‘racist’ discussions in a native title workshop which she was not permitted to address in a management committee meeting. Ms Palmer does not deny that Ms Riley was not invited to attend to address the issue, but says that Ms Riley was told that the discussion of which she had heard was one which "addressed both sides of the issue". There is no evidence that the failure to allow Ms Riley to address the meeting was less favourable treatment or that, if it was, it was so on the ground of Ms Riley’s Aboriginality.

Business cards

58 Ms Riley was employed as ‘Aboriginal Program Manager’ but the word ‘Aboriginal’ was not printed on her business card. Ms Palmer says that she was unaware of this concern and could easily have remedied it. There is no evidence that the failure to correctly print the title on the card was less favourable treatment or that, if it was, it was so on the ground of Ms Riley’s Aboriginality.

Computers

59 Ms Riley says that her computer resources were not to the same standard as those of other employees. Ms Riley had to use other computers in a training room when hers was not able to perform necessary functions. Ms Riley asked for improved computer resources and was refused.

60 In the circumstances Ms Gesler is a comparator, and she had a more modern computer. There appears to have been less favourable treatment of Ms Riley. Was it on the ground of race? There is no direct evidence that this was the case. In out view the evidence does not support an inference to this effect, and indicates other grounds for the treatment.

61 Firstly, Ms Palmer explained in terms of Ms Gesler’s duties why Ms Gesler received a new computer when it was purchased. Secondly, Ms Palmer was in a more senior and responsible position than that of Ms Riley, which might have entitled her to better computer equipment than Ms Riley’s. In fact her computer equipment was of the same standard as Ms Riley’s. Thirdly, the WCAE is poorly resourced, as are many community based, grant-funded organizations. Computer equipment is expensive, and a capital item for which funds are limited.

62 In all the circumstances, and in the absence of any evidence which would support an inference, we are not satisfied that the WCAE’s treatment of Ms Riley in relation to computer equipment was less favourable treatment of Ms Riley on the grounds of her race.

Staff meeting

63 Ms Riley says that in the staff meeting on 7 September, convened to discuss a proposed certified employment agreement, she was subjected to hostile verbal attacks, she was physically isolated from her colleagues and, after she left the room in distress, she was laughed at.

64 We find in the evidence general consensus that the meeting was unpleasant and that Ms Riley was the focus of particular attention, and resentment, in the exchanges which took place at during the meeting. What is uncertain from the evidence, and what we are unable to find as a fact, is that after Ms Riley left the meeting her colleagues who remained in the room laughed at her.

65 The tenor of the meeting was, as we said above, indicative of the way in which Ms Riley’s colleagues reacted to her articulate and forceful presence. In this instance it was not her views regarding the Aboriginal program and Aboriginal issues which caused the unpleasantness, but her views regarding adequate levels of pay.

66 We are not satisfied on the evidence that a person who was not Aboriginal, in the same circumstances, which include being an advocate for higher pay, would have been treated differently.

Use of the car

67 Ms Riley says that she was not allowed use of the WCAE car to the same extent other employees. We are satisfied that Ms Riley had access to the car on the same basis as other employees but for Ms Palmer. Ms Palmer, who made regular use of the car if it was not being used in the evenings, was the Manager of the WCAE and was therefore not in comparable circumstances.

68 For these purposes Ms Gesler was in comparable circumstances. Ms Gesler is not of Ms Riley’s race and there is no evidence that the basis on which she had access to the car was any different to that of Ms Riley. We are satisfied that the extent to which Ms Riley was given access to the car was not less favourable treatment.

Work from home

69 Ms Riley says that she was refused approval to work from home. The WCAE agrees that this was so. Ms Palmer’s evidence was that in her discretion she formed the view that Ms Riley did not have the necessary skills to work from home and so permission was refused.

70 Ms Riley says that Ms Gesler was in comparable circumstances and was given permission to work from home. We are satisfied however that Ms Gesler is not a comparator in these circumstances. She was employed on a part-time basis and was paid for any work she did at home as an extension of her part-time duties. She was not therefore in a position of asking for permission to work at home, and was not in comparable circumstances to those of Ms Riley. There was no evidence that Ms Gesler had sought or been granted permission to work from home; there is only Ms Riley’s deduction from the fact that Ms Gesler did at times do work at home.

71 Without a comparator we must hypothesise: how would Ms Palmer have treated a non-Aboriginal person who applied for permission to work at home in the same circumstances that Ms Riley applied?

72 Working at home was not out of the question at WCAE. It was clearly a possibility - the management committee saw that it was, and Ms Palmer agrees that it was matter she considered. In our view the medical certification relied on by Ms Riley is not relevant to the issue as it refers only to her medical ability to work from home at a later date. The issue is whether, when Ms Riley requested permission to work at home in September 1998, she was refused on the ground of her being Aboriginal.

73 Ms Palmer’s stated reasons for not allowing Ms Riley permission to work at home are that Ms Riley was, in her view, easily distracted, unreliable, and not timely. Ms Palmer gave examples of experiences at work which formed the basis for her having this opinion of Ms Riley.

74 We accept that Ms Palmer’s decision was on the ground she identified. But there is a question whether Ms Riley’s Aboriginality was an additional ground.

75 We have deliberated for some time over the circumstances in which Ms Palmer made the decision regarding Ms Riley’s being allowed to work from home. Ms Palmer acknowledges that a consequence of Ms Riley’s not being allowed to work from home was that Ms Riley could not do the work at all. Further she acknowledges that the project ultimately failed in part because Ms Riley was unable to do the work. Thus there were serious consequences for the WCAE and Ms Riley in her not being allowed to work from home.

76 Ms Palmer’s refusal was immediate and absolute. There was no tolerance even for allowing Ms Riley to attempt to work from home. Yet the reasons Ms Palmer relies on do not necessarily lead only to a conclusion that working from home was impossible, or had no prospects of success. Ms Palmer could reasonably have allowed Ms Riley the opportunity to show that she could, despite reservations work from home. Ms Palmer did not countenance this possibility, either at the time or in evidence.

77 The grounds Ms Palmer relied on are themselves characteristics that are, notoriously, often ascribed to Aboriginal people: easily distracted, unreliable, and not timely. In the course of submissions the Tribunal raised this with counsel for WCAE. Ms Palmer denies that her decision was on the ground of Ms Riley’s Aboriginality.

78 We have considered with great care the evidence to see what indication there is as to whether Ms Palmer ascribed these characteristics to Ms Riley because of her Aboriginality, or saw them as personal characteristics of Ms Riley regardless of her race. The evidence does not enable us to infer that Ms Palmer’s unfavourable view of Ms Riley’s aptitude for working at home, and consequently her decision to refuse permission to work at home, was on the ground of Ms Riley’s Aboriginality.

79 The decision was consistent with Ms Palmer’s management style, and with the tense state of affairs in the workplace. We cannot be satisfied that but for Ms Riley’s Aboriginality Ms Palmer would not have formed the view that she was an unsuitable candidate to work from home.

Being shown a book

80 Ms Riley made an allegation concerning Mr Hornadge’s having drawn her attention to passages in a book.

81 Mr Hornadge is not a party to the proceedings in his own right or as a member or management committee member of WCAE. We have no jurisdiction to consider a complaint concerning his conduct.

82 It would not have been appropriate to consider joining Mr Hornadge as a respondent to the inquiry as in our view a complaint of race discrimination concerning the conduct complained of has no substance. We are satisfied from reading the material to which Ms Riley took exception, and from the circumstances in which she was provided with the material, that in showing her the material Mr Hornadge did not treat Ms Riley less favourably than he would have treated a person in the same circumstances who was not Aboriginal. The fact that Ms Riley herself was offended by the text when in our view most other people, of any race, would not have been, is not relevant to whether Mr Hornadge’s conduct was less favourable treatment of her.

Termination of employment

83 Ms Riley says that her employment was terminated on the ground of her race, and further that the termination was victimisation within the meaning of the Act.

84 In answer to both claims we are satisfied that the ground for termination of Ms Riley’s contract of employment was the failure of the WCAE to attain the enrolments necessary to secure the funds on which Ms Riley’s employment contract was conditional. We are satisfied that this was the ground for termination, and that there is nothing in the circumstances of the WCAE’s decision which indicates that that ground was not a sufficient reason, and the only reason, for termination of Ms Riley’s employment.

85 It is clear that Ms Riley’s employment was, unremarkably for such positions, subject to funding. Clause 1 of the contract says: "The position is specifically linked to the funding agreement between the WCAE and the Department of Employment Education Training and Youth Affairs (DEETYA) under the Indigenous Education Strategic Initiatives Program (IESIP)". Clause 3 says in part: "The contract can also be terminated by the employer by giving two weeks notice to the employee, if there Is any change in the IESIP funding agreement between WCAE and DEETYA".

86 The WCAE Management Committee took account of existing student numbers (equivalent full time units) and prospective student numbers, and of the obligation to repay funds if numbers were not met. At this point we note that we place little weight on Mr Boog’s evidence that Ms Riley’s performance was an issue. He made it clear that that was an impression that he had, and was not a view that the Management Committee had taken. We accept Ms Palmer’s evidence that at no time was Ms Riley’s performance an issue.

87 There is no argument that the concerns regarding student numbers was a legitimate and real one for the Management Committee. The only argument is whether the Committee was correct in its judgment, on Ms Palmer’s recommendation, that the WCAE would not meet the numbers. The correctness of that decision is not a matter for this Tribunal except to the extent that it is unreasonable, implausible, insufficient or otherwise allows for the possibility of there being an additional ground - either Ms Riley’s race or knowledge of Ms Riley’s intended complaint to the Anti-Discrimination Board - for the decision being made.

88 It is true, in our view, and conceded by Ms Palmer in evidence, that the prospect of achieving the numbers was compromised by Ms Riley’s being away from work and unable to work from home. This connection does not however lead to Ms Riley’s race being a ground for the decision, and there were other reasons why student numbers would, even if Ms Riley was at work, be hard to reach. There is in our view no evidence on which we can say that the decision was on a ground other than the concern regarding the student numbers which led to the apprehension regarding funding.

89 It is also true, in our view, that the WCAE was aware, from a remark made to Ms Palmer by Ms Riley during mediation, that Ms Riley intended complaining to the Anti-Discrimination Board. It is not enough however that the WCAE knew of that intention to characterise any action it then took as having been done "on the ground of" that knowledge.

90 While it is open to ask whether the knowledge of Ms Riley’s intention to complain was a ‘real’ ground though there are other grounds, there is no evidence in this matter on which we can say that the decision to terminate, clearly being on the ground of the funding position under the contract, was also on the ground of knowledge of Ms Riley’s intention to complain.

Findings

91 We find that the complaints of race discrimination and victimisation have not been substantiated. There are in our view no circumstances that would justify the making of a costs order contrary to the presumption in s114(1).

Orders

1. Pursuant to s113(1)(a) the complaints are dismissed.

2. Pursuant to s114(1), each party shall pay their own costs.