SIM AND DARYL SAXON PTY LTD T/AS LANYON REAL ESTATE
[2005] ACTDT 2
•20 JUNE 2005
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
CITATION:SIM AND DARYL SAXON PTY LTD T/AS LANYON REAL ESTATE [2005] ACTDT 2 (20 JUNE 2005)
DT03/69
Catchwords: Discrimination in employment – marital status as relevant attribute – complainant encouraged to resign when partner employed by business competitor – possibility of undesirable disclosure of confidential information to partner – causal nexus between unfavourable treatment and relevant attribute.
Discrimination Act 1991, ss. 4, 4A, 7, 8, 10, 102
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336)
De Domenico v Marshall (unreported) [1999] ACTSC 1 (3 February 1999)
Edgely v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95 (1 October 1999)
Waterhouse v Bell (1991) 25 NSWLR 99
Tribunal:Mr M H Peedom, Deputy President
Date:20 June 2005
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/69
RE: JULIE SIM
ComplainantAND: DARYL SAXON PTY LTD
T/AS LANYON REAL ESTATE
Respondent
CORRIGENDUM TO REASONS FOR DECISION
Tribunal : Mr M H Peedom, Deputy President
Date : 20 June 2005
The following corrections are made to the Reasons for Decision dated 20 June 2005:
Page 3, paragraph 12, 1st line:
delete “2003” and substitute “2002”;
Page 5, paragraph 27, 1st line:
delete “2001” and substitute “2002”;
Page 5, paragraph 29, line 2:
insert the word “staff” after the word “that”, second occurring; and
Page 12, paragraph 54, line 2:
delete “102(2)(b)” and insert “102(2)(a)(ii)”.
…………………………
President
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/69
RE: JULIE SIM
ComplainantAND: DARYL SAXON PTY LTD
T/AS LANYON REAL ESTATE
Respondent
ORDER
Tribunal : Mr M H Peedom, Deputy President
Date : 20 June 2005
Order :
The Tribunal is not satisfied, after completing a hearing, that the complainant’s complaints have been substantiated.
THE TRIBUNAL ORDERS, pursuant to section 102(2)(a)(ii) of the Discrimination Act 1991, that the complaints be dismissed.
…………………………….
Deputy President
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/69
RE: JULIE SIM
ComplainantAND: DARYL SAXON PTY LTD
T/AS LANYON REAL ESTATE
Respondent
REASONS FOR DECISION
20 June 2005 Mr M H Peedom, Deputy President
The complaint
The complainant in this case has alleged that she was discriminated against by the respondent in the area of employment because of her “marital status”, as that expression was defined at the date of making her complaint and the events which gave rise to it. The complainant has also alleged that she was discriminated against by the respondent on the ground of her profession or occupation as a real estate agent and on the ground of her association with a person identified by reference to his particular profession or occupation as a real estate agent.
2. The basis of the complaint is that the complainant and her male partner had both been employed by the respondent as real estate sales persons. In June 2002 her partner, Mr W Carney, left the respondent’s employ and commenced work as a real estate salesman with a real estate agency that was a business competitor of the respondent. The respondent’s principal had then pressured her to leave its employ and when she resisted her terms of employment were varied in a way that was disadvantageous to her. In consequence, she alleges, she suffered financial loss and damage to her health for which she seeks compensation and other remedies.
3. By agreement of the parties the issue to be resolved initially is confined to the question as to whether the complaint has been substantiated.
The complainant’s evidence
4. The evidence of the complainant was set out in a document entitled ‘Brief Outline of Claim’ attached to the form of complaint lodged with the ACT Human Rights Office and in an affidavit dated 20 February 2004. A summary of her evidence follows.
5. The complainant said that in about 2002 she had been offered a job by the respondent as a full-time real estate agent. She was offered $18,000 per annum as a retainer for the first 3 months, to increase to $40,000 after the completion of a probationary period. She had rejected the offer. A further offer of $40,000 retainer from the commencement of her employment had been made. She had accepted the offer and had been remunerated at the agreed rate of pay.
6. Mr Carney had also been employed by the respondent on a salary plus performance bonus structure and paid weekly. On 16 June 2002 he tendered his resignation effective from 19 June 2002. On 21 June he accepted employment with another real estate agency, Leader Real Estate, and commenced in that position on 24 June 2002.
7. On 24 June 2002 the complainant attended a regular weekly morning sales meeting of staff of the respondent. During the course of the meeting Mr D Saxon, a director of the respondent, informed staff that there was a potential conflict of interest as the complainant’s partner had commenced work with another real estate agency. He asked staff to consider whether they could continue to work as a team with the complainant. The complainant had then said that she had no intention of doing anything to jeopardise her job or the respondent or its staff members. At the meeting a member of staff had requested clarification as to what staff were being asked to do and Mr Saxon asked that they consider whether the complainant should keep her job or not. He invited staff members to speak with him in private if they wished after the meeting, before lunch-time.
8. The complainant had spoken to Mr Saxon after the meeting and he had informed her that he had not spoken to everyone yet but that “it did not look good”. He also said that she should think carefully about resigning because staff with whom he had spoken felt that the complainant would compromise the company by staying and Mr Saxon had to think about all of his staff. The complainant had responded by saying that she did not wish to resign and wanted to keep her job and would do whatever it took to do so. She said that she posed no threat to anyone and could not be held responsible for what Mr Carney had done. Mr Saxon said that the complainant had been manipulated into a corner and that the best thing for the complainant to do was to resign and go and work with Mr Carney at Leader Real Estate. She said she did not wish to do so and would not be forced to work there just because she had been forced out of her job and had nowhere else to go. Mr Saxon replied that it was not just his decision. He had to look after all of his staff and if they felt threatened then she would no longer have her job.
9. On the following day the complainant spoke to Mr Saxon requesting that she be allowed to retain her job. He told her that he had to look after his staff, that he had been threatened with mass resignations if he allowed her to stay and that 90% of the staff did not want her to continue with the respondent.
10. Later on the same day Mr Saxon had said to her that he did not think she would have a job with the respondent and it was in her best interests to resign because it was not conducive to a good work environment for her to stay if all of the staff were talking about her behind her back. He said that no-one trusted her anymore nor would they want to openly discuss potential new listings if she was in the office. The complainant had inquired whether she was being fired because she was not going to resign and, if so, Mr Saxon would have to put her termination in writing. He replied that it would be in her best interests to go and he would need to get legal advice before he put anything in writing. He then told her to go home and get her house in order and that she was not in a fit state to work there.
11. The complainant had then sought medical advice and had been diagnosed as suffering from acute situational crisis and commenced a period of sick leave. She advised her office and sent in a doctor’s certificate the next day.
12. On 2 July 2003 the complainant went into the respondent’s office and had a conversation with Mr Saxon. He told her that she had a job with the respondent but with new conditions of employment. That meant that she would be employed on a commission-only basis but, instead of being paid on exchange of contracts like other staff, she would only be paid on settlement of sales which would involve a delay in receipt of commission for 2-3 months. She understood that she was the only person employed by the respondent on this basis.
13. The complainant had fallen into a state of depression but after a time obtained employment elsewhere. The pay which she received was less than what she had formerly received from her employment with the respondent.
14. The complainant said that, as a result of being forced to leave the employment of the respondent, she had had to sell her home; that she lost the job in real estate which she loved; and she had lost a good credit rating, an excellent banking history and her ability to have a telephone account in her own name. The events had also had an adverse impact on her relationship with her partner. She had moved to Sydney to live with her mother.
15. In cross-examination the complainant agreed that the real estate industry was highly competitive and that if a business competitor became aware of a sale listing with her employer that competitor may attempt to use that information to secure the sale. She also agreed that there was a possibility that information about the respondent’s business may be accidentally passed onto Mr Carney in their home. She accepted that the meeting of 22 June 2002 had been a usual staff meeting and that the staff were entitled to know about Mr Carney’s new employment with a competitor but considered she was entitled to be forewarned that the subject would be raised at the meeting. She did not disagree with an account given by Ms B Wark in an affidavit admitted in evidence of a conversation with her on 31 March 2002.
The respondent’s evidence
16. In an affidavit dated 10 June 2004, Mr D Saxon, a director of the respondent, said that the complainant was employed under a standard workplace agreement which provided that she be paid at an annual salary of $18,000 which could be increased after satisfactory completion of a 3 month probationary period to $40,000 pa plus bonus or on a commission-only basis payable on exchange. Sales persons were required to generate a minimum of $25,000 per quarter in sales commission. If this was not achieved their employment could be terminated. He attached a copy of what he said was the complainant’s standard workplace agreement to his written statement. It was not dated, signed nor completed with details of the employee.
17. The complainant and four new staff had been placed on an after-probation retainer rate of $40,000 from the commencement of their employment which he said was the result of an internal administrative error and they should have been paid $18,000 pa. Once the error had been discovered, the respondent decided to bear the loss rather than attempt to recover the over-payment and upset the staff affected.
18. On 30 June 2002, as the complainant had failed to meet her quarterly sales commission target of $25,000, the respondent had placed her on a commission-only basis. She was the only staff member to fail to meet the target.
19. Mr Saxon said that at the meeting on 24 June 2002, after learning of Mr Carney’s new employment with Leader Real Estate, he had said to staff at the meeting that it would appear that there may be a problem because the complainant’s “ex work partner Wayne” had taken a position with Leader Real Estate. She confirmed that this was the case and said that Mr Carney had made the decision while she was away in Sydney and had not discussed the matter with her. His account of the rest of the discussion was substantially the same as that of the complainant.
20. During a discussion with the complainant after the meeting on 24 June 2002 he had explained that, of the staff he had spoken to, 90% had said they believed that the situation would have an adverse impact on their income and with their working relationship with her but that one staff member did not share that view. The complainant had then said in angry terms that Mr Carney had manipulated her into a corner to go and work with him at Leader Real Estate. She said she did not intend to join him there.
21. Mr Saxon agreed that during a conversation with the complainant he had referred to the need for him to obtain legal advice but said that this was in the context of a proposal that she put to him on 25 June 2002 that her employment could be made subject to conditions that she only have access to the respondent’s premises when other staff were in attendance, that her diary be interrogated on a daily basis, that she sign a confidentiality agreement and that she provide an updated list of all client enquiries on a daily basis. He said that he told her that no one would force her out of the respondent’s employment but he had a responsibility to staff and he needed to get all of their views before making a decision. He said the result of staff consultation was that 8 salespersons expressed concern about the situation and 4 said they had no concerns.
22. Mr Saxon spoke to the complainant on 26 June 2002 and told her that he had received information that Mr Carney had been contacting the contacts he made while working with the respondent and asked whether the complainant was aware of this. He said that he explained to her that staff had been concerned about how this would affect their income due to lost business. He said that the complainant had replied that she did not know but she doubted that he would do this.
23. On 29 June 2002 the complainant came to the office and handed over a doctor’s certificate for sick leave for the period 25 June 2002 to 2 July 2002. In response to her enquiry whether she still had a job with the respondent, Mr Saxon said that she did but that she would have to decide about going on commission-only as she had not achieved her budget. He would prepare a new agreement for her and it would be ready for her when she returned to work after her sick leave. The agreement was delivered to her but she extended her sick leave.
24. Mr Saxon denied that the respondent had terminated the complainant’s employment. He said that the complainant had obtained and commenced alternative employment without notice to the respondent.
25. In cross-examination, Mr Saxon said that he wished he had spoken to the complainant before the meeting on 24 June 2002 about Mr Carney’s new position and, with the benefit of hindsight, he should have, but he had wanted to clear the air and it was the culture of his office to discuss issues that affected it openly amongst staff. When asked to describe the conflict of interest about which he had been concerned, he said that as the complainant and Mr Carney lived in the same house his staff would be concerned about the possibility of information being given inadvertently or deliberately to a business competitor and this could have financial consequences for his staff if business was lost.
26. Evidence was also given on behalf of the respondent by Ms B Wark, a real estate salesperson employed by the respondent in the position of sales manager.
27. She said that on around 31 March 2001 she had received a phone call from the complainant who told her that Mr Carney had been offered a job with Leader Real Estate and she wanted Ms Wark’s opinion and advice about the matter. The complainant had said that she was concerned that if he took the position there would be a conflict of interest because of her employment with the respondent. Ms Wark had agreed with this suggestion and said that she felt it would create a very difficult and uncomfortable home environment because it would restrict conversation to matters outside of her day’s activities. She commented that real estate was a competitive industry and that the complainant would be unable to discuss prospective purchasers or vendors with Mr Carney and because of the complainant’s loyalty to her employer she would not be able to discuss office procedures or the normal office activities that would otherwise be a normal part of their conversations. She advised the complainant to discuss the matter with Mr Saxon.
28. On 31 March 2002 Ms Wark had another conversation with the complainant who told her that Mr Carney was to commence employment with the respondent and she was relieved that the conflict of interest that she had been concerned about would now be avoided.
29. Ms Wark said that after the meeting of the respondent’s staff on 24 June 2002 she had informed the complainant that, in her opinion, it would be too much to ask that people should feel comfortable working with her discussing impending business openly while her partner was employed with the opposition.
The law to be applied
30. The discrimination alleged in this case is that referred to in section 10 of the Discrimination Act 1989 (“the Discrimination Act”) which provides as follows:
10 Applicants and employees
(1) It is unlawful for an employer to discriminate against a person—
(a)in the arrangements made for the purpose of deciding who should be offered employment; or
(b in deciding who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee—
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
31. Pursuant to section 8 of the Discrimination Act, discrimination is constituted by conduct which treats another person unfavourably because of an attribute referred to in section 7 (see Edgely v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95 (1 October 1999)).
32. Relevantly to the complainant’s complaint section 7 provides:
7 Grounds
(1)This Act applies to discrimination on the ground of any of the following attributes:
……….
(d)marital status;
……….
(m)profession, trade, occupation or calling;
(n)association (whether as a relative or otherwise) with a person identified by reference to an attribute referred to in another paragraph of this subsection;
……….
(2)In this Act, a reference to an attribute mentioned in subsection (1) includes—
(a)a characteristic that people with that attribute generally have; and
(b)a characteristic that people with that attribute are generally presumed to have; and
(c)such an attribute that a person is presumed to have; and
(d)such an attribute that the person had in the past but no longer has.
“Marital status” was defined by section 4(1) of the Discrimination Act to include the de facto spouse of another person. The term “de facto spouse” was also defined by section 4(1) of the Discrimination Act as meaning:
in relation to a person, a person of the opposite sex to the firstmentioned person who lives with the firstmentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person.
33. It was not disputed that the complainant was the de facto spouse of Mr Carney within the meaning of the Discrimination Act at the time of the events that gave rise to the complaint. Nor was it disputed, to the extent to which it may be relevant to these proceedings, that the complainant was in a “relationship status” with Mr Carney from the time of the amendment of the Discrimination Act to substitute that status for marital status as a ground of discrimination under section 7.
34. Section 4A of the Discrimination Act is also relevant to the issue of causation. It provides:
4AMeaning of doing an act
(1)In this Act:
doing an act includes failing to do the act.
(2)In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
35. For a complaint of discrimination to be substantiated it is necessary for the discrimination to be proved to a proper standard based upon proper evidentiary material and there must be a comfortable degree of satisfaction that they have been proved by evidence which is sufficiently robust to justify the conclusion arrived at rather than inexact proofs, indefinite testimony or indirect references (see De Domenico v Marshall (unreported) [1999] ACTSC 1 (3 February 1999) and Briginshaw v Briginshaw (1938) 60 CLR 336).
Reasons for decision
36. In documents lodged on behalf of the complainant with the Tribunal it was alleged that the respondent treated the complainant unfavourably by terminating her employment and in the manner in which he dealt with her following Mr Carney ceasing his employment with the respondent and taking up employment with a business competitor.
37. The evidence does not, in my view, establish that the complainant was dismissed from her employment by the respondent. Her own evidence suggests that she made the decision to leave the employ of the respondent.
38. The evidence establishes, however, that pressure was applied directly by Mr Saxon to the complainant to resign from her position and indirectly by his request to staff in her presence to consider her future with the respondent in terms which suggested an answer that was adverse to her continued employment with the respondent and without forewarning of his intention to do so. In these respects, in my opinion, the complainant was treated unfavourably.
39. The evidence also establishes, in my view, that the complainant was offered terms of continued employment with the respondent at the end of the probationary period that were less favourable than the terms on which she was originally engaged, irrespective as to which version of the terms of her original employment by the respondent is accepted. In this respect also she was treated unfavourably by the respondent.
40. In order for the complaint to be substantiated, however, it is necessary for the complainant to prove to the relevant standard that the treatment which I have found to be unfavourable to her was because she had an attribute referred to in section 7 of the Discrimination Act. The specific attributes relied upon were those referred to in paragraphs (d), (m) and (n) of section 7(1) of the Discrimination Act.
41. The Tribunal was referred, in relation to this issue, to two decisions of the NSW Court of Appeal: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 and Waterhouse v Bell (1991) 25 NSWLR 99.
42. In Boehringer’s case the complainant was denied a job because her husband worked for a competitor and because of concerns on the part of her potential employer that she may inadvertently disclose confidential information. The Court of Appeal held that there was no discrimination based on marital status as it arose through the identity or situation of her spouse and not from her marital status in a general sense. The individual complainant rather than a category of persons was found to be the basis of the decision.
43. In his reasons for decision Priestly JA said (at page 24):
When pars (a), (b) and (c) within s 39(1) (the equivalent provisions of section 7(1)(d), section 7(2)(a) and section 7(2)(b)) are looked at, their terms appear to me to be carefully directed to three specific situations (which I will describe by reference to a married person). First, discrimination against a married person simply because he is married and for no other reason, second, discrimination against a married person because of some particular characteristic that all or nearly all married persons have and third, discrimination against a married person on the ground of some particular characteristic which married persons are generally believed to have whether or not they in fact have it.
44. In the same case Mahoney JA observed (at page 22):
In my opinion, if the fact of marriage or the relevant co-habitation results, as a matter of fact, in a position of real difficulty or (to adapt a phrase used in other contexts) in an occasion of sin, the employer may take that into account. Thus, if the employment involves custody of the keys of a bank, the fact that the spouse of the prospective employee or the person with whom she is co-habiting is a person ideologically committed to bank robbery would not be irrelevant. And this notwithstanding that the employer was not convinced that the complainant would not in fact try to safeguard the keys or would be unsuccessful in doing so.
I think the present is a case of this kind. In certain competitive or confidential situations, the position of an employee could be, or could fairly and properly be seen by an employer to be, such that it was proper not to have the employee in a relationship with an employee of a competitor where, by inadvertence or otherwise, damage to the employer could result. And this would not depend, or depend merely, upon the proneness of persons to do what the tribunal here suggested.
45. A different result was arrived at in Waterhouse’s case. In that case the Court of Appeal held that the basis of the decision of the licensing authority respondent to deny the applicant a horse trainer’s licence was solely because she was married to a person considered by the respondent to be a dominating rogue and not because she was thought to have personal character deficiencies. It considered that the decision of the respondent was based upon a characteristic attributed or generally attributed to all married women, that was, corruptibility at the hands of a woman’s husband.
46. In Waterhouse’s case Clarke JA said that, in the circumstances of that case, the question to be resolved was whether the respondent acted as it did was because the complainant was married to Mr Waterhouse and it believed that she, in common with married women generally, was susceptible to the corrupting influence of her husband. An affirmative answer would require a finding that unlawful discrimination was involved. On the evidence in that case an affirmative answer was justified. His Honour considered that there was a common thread in the evidence which pointed strongly in favour of the view that the respondent acted in the belief that the complainant was liable to be corrupted by her husband simply because she was married to him. The clear and emphatic evidence of a witness who gave evidence on behalf of the respondent, when pressed as to why the complainant might be susceptible to the influence of her husband, that it was because she was married to him, was considered to be a clear rejection of any notion that the decision was based on character deficiencies which rendered the complainant vulnerable to corrupting influences.
47. The basis on which the Court of Appeal in Waterhouse distinguished Boehringer is instructive as to the approach which should be taken by the Tribunal in resolving the issue in this case as to whether there is a causal nexus between the unfavourable treatment of the complainant by the respondent and any relevant attribute which she was claimed to have. At pages 115-116 Clarke JA said:
In Boehringer Ingelheim Pty Ltd v Reddrop, the potential employer was concerned at what I might term security risks and rejected the applicant for employment because of the chance of communication of company secrets to the applicant’s husband. Given that two persons working in sensitive positions for competing companies live in close proximity, whether as husband and wife, father and son, or simply as close friends, such a risk must invariably be present despite the integrity of the applicant. Things may be said which appear quite innocent but which convey a great deal more to the informed listener. A chance remark may be passed or the listener might overhear a conversation on the telephone. These are simply examples of the manner in which a breach of security might occur although the employee in question was conscious of the need, and honestly endeavoured, to maintain secrecy.
The decision in Boehringer Ingelheim Pty Ltd v Reddrop should be seen therefore as one in which the decision was grounded upon a characteristic which was particular to Mrs Reddrop (and was not generally imputed to married women), that is, that she had a close relationship with an employee of a competitor.
On the other hand no matter what influence is brought to bear by a husband on an incorruptible wife he will not succeed in corrupting her. He will only be able to achieve that if she has a particular characteristic, that is, that she is corruptible.
Here the first defendant’s decision was not grounded simply on the plaintiff’s close relationship with Robbie Waterhouse. He had close relationships with other people, for example her father Mr T J Smith, whom, the evidence suggested, would never have been corrupted by him. What caused the first defendant to reject her application was that she was married to Robbie Waterhouse and, being his wife, was corruptible at his hands. The relevant characteristic was that she was liable to be corrupted by her husband and if, as my preferred view of the first finding accepts, this was solely because she was married to Robbie Waterhouse it follows, in my view, Boehringer Ingelheim Pty Ltd v Reddrop did not compel, or even support, the Tribunal’s decision.
The distinction can be further clarified by reference to an example given by Mahoney JA in Boehringer Ingelheim Pty Ltd v Reddrop and referred to by counsel for the first defendant before the Tribunal. The example was of an employer refusing to engage as a live-in cook a man who was cohabitating with Typhoid Mary (a person carrying, but not suffering from the effects of, typhoid and thus a source of infection to others). If the man was married to Typhoid Mary he would receive less favourable treatment because he had a certain characteristic, namely that he was married to a typhoid carrier and was at risk of becoming infected himself, and not on the grounds either that he was married or that he had a characteristic generally appertaining, or imputed, to a married man. His case would fall outside s 39(1)(c).
In this case the characteristics of Robbie Waterhouse would not lead to a conclusion that there was a risk that his spouse would be corrupted unless there were grounds for believing that she was corruptible. For reasons I have earlier given the basis of that belief, on the hypothesis I have adopted, was a corruptibility generally imputed to all married women.
48. It is clear in this case that the ground referred to in section 7(1)(d) was not the cause of any unfavourable treatment of the complainant by the respondent. Section 7(1)(d) is, as explained by Priestly JA in Boehringer, concerned with the “status or condition” of the complainant’s relationship. There is no evidence to suggest that the complainant’s status or condition of being in a de facto relationship with another person was the cause of any unfavourable treatment of her. Indeed, the complainant was employed by the respondent with knowledge of her status or condition without there being any suggestion of her being subjected to any unfavourable treatment.
49. The complainant’s account of the discussions she had with Mr Saxon confirm that the reason for the treatment of her was connected to Mr Carney’s conduct in becoming employed with a business competitor and the potential for there to be a conflict of interest arising from the fact that she lived in close proximity to him. The potential for there to be such a conflict was acknowledged by her.
50. Mr Saxon’s evidence of his conversations with the complainant does not differ significantly from the evidence of the complainant except that he said that when he requested the views of staff in relation to the issue on 24 June 2002 he referred to Mr Carney as the complainant’s “ex work partner”. That reference does not support a finding that the complainant had a characteristic generally attributed to persons in a de facto relationship or which they are generally presumed to have or that he presumed her to have. Rather it suggests that Mr Saxon’s treatment of the complainant was grounded on a characteristic that was particular to the complainant.
51. Each case must, of course, be considered on its merits. However, the comments of Clarke JA in Waterhouse in explaining the rationale for the decision in Boehringer (see paragraph 47 above) are apposite to the circumstances in this case.
52. There is in this case no clear and emphatic or other persuasive evidence of the kind given in Waterhouse that the respondent’s conduct was based upon the fact that she was in a de facto relationship with Mr Carney. The case should, in my view, be seen on the evidence before the Tribunal as one in which the respondent’s treatment of the complainant was grounded upon a characteristic that was peculiar to the complainant, and not generally imputed to women in a de facto relationship, that is, she had a close relationship with an employee of a business competitor of the respondent.
53. I therefore conclude that the complainant has not established unlawful conduct under section 10 of the Discrimination Act because of an attribute referred to in section 7(1)(d). It follows also from the conclusion which I have reached as to the reason for the treatment complained of that the ground referred to in section 7(1)(m) and section 7(1)(n) have not been established.
Conclusion
54. The Tribunal is satisfied that the complaint has not been substantiated and, pursuant to section 102(2)(b) of the Discrimination Act, must therefore be dismissed.
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
APPEARANCE DETAILS
To be completed by Member's Staff
________________________________________________________________________
FILE NO: DT03/69
COMPLAINANT: JULIE SIM
RESPONDENT: DARLY SAXON PTY LTD T/AS LANYON REAL ESTATE
COUNSEL APPEARING: COMPLAINANT: DR D HASSALL
RESPONDENT: MR C ERSKINE
SOLICITORS: COMPLAINANT: MAMDOUH ELMARAAZEY
RESPONDENT: DIBBS BARKER GOSLING
OTHER: COMPLAINANT:
RESPONDENT:
TRIBUNAL MEMBER: MR M H PEEDOM, DEPUTY PRESIDENT
DATE OF HEARING: 7 MARCH & 6 MAY 2005 PLACE: CANBERRA
DATE OF DECISION: 20 JUNE 2005 PLACE: CANBERRA
COMMENT:
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