Slottje v City of Lithgow Council

[2011] NSWADT 146

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Slottje v City of Lithgow Council [2011] NSWADT 146
Hearing dates:	18 and 19 May 2011
Decision date:	16 June 2011
Jurisdiction:	Equal Opportunity Division
Before:	N Isenberg, Judicial Member M O'Sullivan, Non-Judicial Member J Schwager, Non-Judicial Member
Decision:	Ms Slottje's complaint of unlawful discrimination on the grounds of sex is dismissed
Catchwords:	Sex discrimination
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	O'Callaghan v Loder [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17
Category:	Principal judgment
Parties:	Elizabeth Slottje (Applicant) City of Lithgow Council (Respondent)
Representation:	E Slottje (Applicant in person) C McElroy (Respondent)
File Number(s):	101082

REasons for decision

Introduction

1. On 17 August 2009, Ms Elizabeth Slottje started work with the Lithgow City Council as a Cultural Development Officer in its Community and Culture Group. She resigned on 19 or 20 October 2009, claiming persistent personal attacks since the beginning of her employment and persistent and escalating harassment in the workplace.

1. On 10 December 2009 she complained to the President of the Anti-Discrimination Board (the AD Board) that she had been discriminated against in relation to the terms and conditions of her employment on the ground of her sex. Her complaints under the Anti-Discrimination Act 1977 (the AD Act) were referred to the Tribunal.

Issue for the Tribunal

1. As we stressed many times during the course of the hearing, in order to establish that she has been discriminated against on the ground of her sex, Ms Slottje would have to prove that:

a) the Council, through its employees, treated her less favourably than they treat or would treat a man in the same circumstances or in circumstances which are not materially different;

b) one of the real or genuine reasons for that treatment is that Ms Slottje is a woman; and

c) the treatment affects the terms and conditions of her employment or constitutes a detriment in relation to her employment: the AD Act , s 24 and s 25(2)

Complaints

1. In essence, Ms Slottje complained that:

• a male staff member had made complaints about her,to which she did not have the opportunity to properly respond, and his account was therefore preferred to hers (the Jason incident)
• she was bullied by her supervisor, Mr Johnson
• inappropriate language was tolerated in the workplace

1. She contended that the Council was vicariously responsible for the conduct of its employees and that the Council's treatment of her amounted to constructive dismissal.

Evidence

1. We had available to us the report of the President of the AD Board which included Ms Slottje's letter of resignation, her complaint and the Council's response. At the hearing Ms Slottje gave evidence as did Ms Banning, Ms Dean, Ms McCarthy, Ms van der Velden and Mr Wilkinson. All provided some evidence that the local arts community was optimistic about the appointment of Ms Slottje and, most went on to express the view that they thought Ms Slottje was doing a good job. However, unfortunately none of the witnesses called in support of Ms Slottje related to the issues at hand; none addressed discrimination againstMs Slottje in the workplace, and to that extent, their evidence was unhelpful.

1. In addition, statements were provided byMs Guerin, Ms Dunnett andMs Woolseywho wrote of having worked with Mr Johnson at the Council and having experienced workplace difficulties with him. Limited weight must be attached to their evidence as they were not available for cross-examination. Further, while they may have providedinformation about difficulties they had experienced with Mr Johnson, their evidence did not address the issue of whether they were treated differently to their male counterparts.

1. Officers of the Council providedstatements and gave evidence: Mr Johnson, the Community and Culture Manager and Ms Slottje's supervisor, Ms Lollback, Group Manager, Community and Culture, and Mr Bailey, the General Manager.

The Jason incident

1. Ms Slottje said that early one morningshortly after she had started work with the Council, a person by the name of Jason had "given her a directive" to attend a particular meeting. She denied that Jason had merely suggested she attend the meeting. She said she told him that she did not know what his position was and she was also unclear as to her own role. She said that he had responded "don't speak to me like that". She said she had not intended to be rude to him.

1. Jason, who no longer works for the Council and was not called to give evidence, apparently reported the exchange to Mr Johnson. Ms Slottje said she approached Mr Johnson and asked if she could discuss the matter but, she said, he had refused and told her that Jason had been "deeply wounded". She believed Mr Johnson had made up his mind that she had been rude to Jason and had "sided" with Jason.

1. Mr Johnson gave evidence that he did not ask Ms Slottje about the exchange because he decided she was new and perceived she was finding the job stressful. He did not recall that she had come to him complaining about Jason and denied that he told her that Jason had been "wounded" by her remarks.

1. Ms Lollback gave evidence that Jason had also complained to her and that she told him, in Mr Johnson's presence, to give Ms Slottje the opportunity to settle down.

1. As to how it was contended, in relation to the Jason incident, that she was discriminated against as a woman, she said that she was expected to be "submissive and flirty" to men in the work environment. She said it was acceptable for Jason to be "harsh and cold" towards her and that this was condoned by Mr Johnson.In his evidence Mr Johnson said he had no idea where she had got the idea from that she was expected to be submissive.

Bullying by her supervisor

1. Ms Slottje claimed that the Jason incident served as a "trigger' for Mr Johnson to commence "attacking" her.She said there was a "targeted campaign" by Mr Johnson to make it intolerable for her in the work environment.

1. She said Mr Johnson had come to visit her at Eskbank House, a museum of which she was the curator, on 27 August 2009. Ms Slottje said Mr Johnson had "attacked her" and was so angry he became red in the face. She said he became "an enraged male"when she failed to be submissive. In her statement she alleged that Mr Johnson's bullying accelerated as she achieved outcomes in her role. She suggested his aggression related to his inability to deal with competent women.

1. Mr Johnson said the meeting at Eskbank House was a "catch up" or "pep talk" which lasted 10 to 15 minutes. He said he had asked Ms Slottje how she was finding the job. He thought she may have been stressed but she denied that she was. He said he told her he had had positive feedback about her performance in the job. Mr Johnson agreed that he had discussed the Jason incident with Ms Slottjebut categorically denied that he had gone with the intention of berating her. He said he had also received complaints from other staff members about Ms Slottje, such as a complaint that she had been abrupt and abrasive. Mr Johnson accepted that Ms Slottje was new to the role, but he was receiving a disproportionate number of complaints about her and his concerns escalated. Ms Lollback said that within the first couple of weeks she also had received least two complaints about Ms Slottje. Ms Slottje alleged there was "collusion" between the witnesses about her alleged rudeness and behaviour.

1. Mr Johnson said that at the meeting Ms Slottje seemed upset that there had been complaints about her and was "shocked and emotional". He said he assured her that it was "no big deal" but she kept saying "no, no". He said that, in the end, he told her to listen to what he was saying,and that she needed to be more gentle with people. Eventually, he said,Ms Slottje acknowledged this.

1. Ms Slottje said that Mr Johnson had told her that "she did not fit within [his] Community and Culture family". Mr Johnson denied that he had said that and noted that this was not his view anyway; neither had he formed the view that Ms Slottje was too difficult to work with. Mr Johnson said that it was completely untrue that he had been in a rage or that he had raised his voice.

1. Mr Johnson said that he was comfortable with the outcome of the meeting and thought it ended with no hostility between them.He noted that if it had been a disciplinary meeting it would have been conducted entirely differently.

1. There was another meeting on 2 September 2009 which Ms Slottje said was also "a personal attack" in which Mr Johnson became "abusive". She did not complain about him because she "sensed there was collusion" between Mr Johnson and Ms Lollback. Ms Lollback said she had never received any complaints about Mr Johnson from other staff members.

1. Mr Johnson said that the meeting of 2 September had been to deal with Ms Slottje's complaints about the black pussy incident (see below). He denied that he was critical of her but acknowledged that she was upset. He wrote in his statement that neither of them was angry.

1. Ms Slottje said she was relieved when Mr Johnson went on leave for most of September and she was able to get on with her work.

1. Ms Slottje was critical of Ms Lollback for failing to support her, suggesting that she had not enquired how she, Ms Slottje, was going. Ms Lollback said she had an open door and on many occasions Ms Slottje had come in, shut the door, and talked to her. Ms Lollback considered they had a good working relationship; in fact, Ms Slottje had stayed at Ms Lollback's home.Ms Slottje said she was very disappointed that Ms Lollback had not attempted to mediate her conflict with Mr Johnson and that Mr Johnson was "protected". She thought Ms Lollback was submissive and fearful of the General Manager, Mr Bailey and that it would have been against Ms Lollback's interests to support her.

1. There was another meeting at Eskbank House with Mr Johnson on 19 October 2009 when he had come to see her about a complaint about her by a member of the public. Mr Johnson said that up until that complaint he had thought she was settling into the job and that things had improved after their earlier discussions.

1. Ms Slottje said it was never a discussion, only allegations by Mr Johnson. Ms Slottje alleged MrJohnsonorchestrated this and the previous meetings so that she would be alone. She said Mr Johnson was "being aggressive" and she "felt unsafe" so she stood up to "change the space". Mr Johnson said he was "gobsmacked" when Ms Slottje got up and left. Mr Johnson said he was incredulous that Ms Slottje had said she felt unsafe.

1. Ms Slottje then went to see Ms Lollback again and she said she was resigning because the situation was "intolerable"even though she loved the job. She agreed that her letter of resignation, dated the next day, said nothing about perceived discrimination on the basis of sex.

1. Ms Lollback said that she had not been under the impression that Ms Slottje had experienced any distress about working with Mr Johnson. Mr Johnson and "a couple of others" had made comments to her about Ms Slottje's conduct. While Mr Johnson was on leave and Ms Slottjereported directly to her, she had occasion to counsel her about coming across in a 'strong' manner. In Council's response to the AD Board Ms Lollback was recorded as having providedMs Slottje with examples of how she had spoken to her (Ms Lollback). It was recorded that Ms Slottje did not listen to her and chose to keep talking and being "quite forthright". Mr Bailey also said he was aware at that time that there had been complaints about Ms Slottje's conduct and that she could be "difficult" to work with, but he had no details. He was confident that Ms Lollback and Mr Johnson would handle the matter appropriately.

1. Ms Slottje said that when she complained about how she had been treated, the Council's response was to "vilify her". She agreed in cross examination that Council's response was to investigate her complaint.

Inappropriate language in the workplace

1. Ms Slottje said that the workplace at the Council was open plan, that there were about 12 people in the workgroup, and that the gender balance was about 50-50.

1. At the hearing, for the first time, she complained that the dogcatcher - someone she described as being "of no consequence to [her]" - had called her "Darling", "Dear", and "Love" and never called her by her name. She agreed that she was not singled out in that regard and that all women were called those names by him.

1. On an occasion about four weeks after she had commenced work at the Council there was "chortling among the men" when the mythical Lithgow panther was discussed and described as a "black pussy" by the dogcatcher (the black pussy incident).

1. She said she did not complain because the culture was not conducive to pointing out her concerns to her male supervisor. She said she found the work environment "suffocating". She considered the environment to be "very tribal" and expected there would be repercussions if she spoke up.

1. Later, she spoke with Ms Lollback. She said the purpose of the complaint was about her treatment by Mr Johnson and denied that she had described the workplace as "sexist", only "dysfunctional". She said she raised the black pussy incident only as an example of the culture at the Council. She said she had not sought formal intervention because she expected a backlash. Ms Slottje said in cross examination that she had a good relationship with Ms Lollback. She accepted Ms Lollback's authority but still thought it was necessary to point out the problems with the culture. She said that during part of their conversation Ms Lollback had become abusive and "authoritarian".

1. Subsequently she learned that, as a result of her complaint, Ms Lollback had directed Mr Johnson to conduct a meeting with staff, from which she was "excluded".

1. Ms Lollback and Mr Johnson confirmed that he had been directed to speak to staff to investigate if there was anything inappropriate that anyone might have found offensive and to remind staff of appropriate workplace conduct. Mr Johnson said he had spoken to staff forcefully and told them that the language had been unacceptable and that there was to be no retribution against anyone for the complaint. Mr Johnson agreed that the language was "stupid and inappropriate" but it had ceased after he spoke with staff. He said that he warned staff about retribution against any complainants. By memorandum of 2 September, he advised Ms Slottje to that effect and told her to report to him if there was any form of retribution against her, "however subtle".In contrast, Ms Slottje said that Mr Johnson had "gloated" when he told her the staff had guessed that she was the source of the complaint.

Consideration

1. In bringing this complaint Ms Slottje alleges that she was discriminated against on the basis of her sex.

1. Ms Slottje's short employment with the Council was not a happy time, although Ms Slottje apparently loved the job; it appears to have been marked by conflict, at least as far as Ms Slottje was concerned, between her and her supervisor and that problems emerged from very early in her term. From the Council's viewpoint, there was conflict between Ms Slottje and other staff members and at least one member of the public.

1. We accept, on the basis of the witnesses called by Ms Slottje, that Ms Slottje was held in high regard by the local arts community. We note that Mr Johnson, too, considered that she was doing a good job, and in that regard, there is no dispute.

1. What is in dispute is the interaction between Mr Johnson and Ms Slottje, and to a lesser extent, between Ms Lollback and Ms Slottje. Ms Slottje repeatedly referred in her statement and in her evidence to Mr Johnson's "attacks" upon her and that he became "enraged" in his discussions with her. Ms Slottje did not appear to dispute that complaints were made about her, only that they were unjustified. We make no comment about whether the complaints were reasonable, as this is not a matter for us to decide. Mr Johnson, as her supervisor, conveyed to her that she had been the subject of complaints by other members of staff for her abrasive manner and for displeasing a member of the public. We accept that Ms Slottje may not have welcomed Mr Johnson's informing her of those complaints.

1. We do not accept, however, that Mr Johnson "attacked"Ms Slottje or that he was "in a rage" as she alleged. That he spoke with her in private was entirely appropriate in circumstances where he was informing her of complaints about her and we find there was never any threat to her personal safety. Mr Johnson was cross-examined at length. We found Mr Johnson to be a straight-forward and considered witness, and prefer his account of the meetings about which Ms Slottje complained.

1. Ms Lollback was also cross-examined at length, and we also found her to be a credible witness. We accept that Ms Lollback, like Mr Johnson, attempted to counsel Ms Slottje on her manner. We also accept that Ms Lollback responded entirely appropriately when Ms Slottje raised her concerns about the black pussy incident. We reject Ms Slottje's assertions that Ms Lollback was unsupportive, especially having regard to Ms Lollback's open door policy - of which Ms Slottje availed herself, Ms Lollback's attempts to counsel her, and Ms Lollback's intervention as soon as the black pussy incident was raised. We find it highly unlikely, given her self-assured presence as a witness that Ms Lollback was submissive and fearful of Mr Bailey.

1. The issue before us though, is whether Ms Slottje was treated differently to her male counterparts.The only evidence, in our view, of any possible differential treatment was in respect of the Jason incident, that is, that Mr Johnson accepted Jason's account of his exchange with Ms Slottje, without consulting Ms Slottje, and to be relevant to the matter before us, that this was because she was female. We accept Mr Johnson's evidence that he did not ask Ms Slottje about the exchange at the time of Jason's complaint because he was of the view thatMs Slottje was new to her role and under some stress. Jason had also complained about her to Ms Lollback, who also was of the view thatMs Slottjeshould be giventhe opportunity to settle into her role. It was only after further complaints about Ms Slottjethat Mr Johnson spoke to her at the first of the meetings at Eskbank House. There was no evidence in our view that she was treated differently to how any other member of staff - male or female - would have been treated in similar circumstances.

1. We consider Ms Slottje's assertion that Mr Johnson was aggressive and that this was related to his inability to deal with competent women, to be completely without foundation. Further, we find there to be no evidence whatever that Ms Slottje was expected to be "submissive and flirty".

1. Ms Slottje alleged that she had no option but to resign. Her letter of resignation referred to Mr Johnson's "personal attacks"and that she had to manage his "emotionally charged outbursts". In our view we find nothing in Mr Johnson's conduct to be other than entirely appropriate. In any event, as we have already found, there was no evidence that in any aspect of his conduct, or for that matter, Ms Lollback's conduct, Ms Slottjewas treated differently from how any other member of staff in similar circumstances would have been treated.

1. On the basis of the reasoning in O'Callaghan v Loder [1983] 3 NSWLR 89and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 , an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure.

1. As to the black pussy incident, the alleged comment was made on one occasion to the staff at large. There was no evidence whatsoever that was said to in a bullying or threatening way or that it was directed to Ms Slottje. It is even equivocal, in our view, as to whether it amounted to anything more than a witty play on words. In any event, this does not constitute harassing behaviour sufficient to 'permeate' the work environment. Neither, do we regard as inappropriate that the dogcatcher addressed all female employees with what might otherwise be characterised as meaningless and generic terms of address. What is more, there was no evidence that Ms Slottje had asked him to desist or that she had previously complained about those turns of phrase. In fact, Ms Slottje had not previously mentioned this until the hearing, in response to the Tribunal's many reminders to her of the issues at hand. We simply do not regard any aspect of the conduct of the Council or its employees to constitute any harassment of Ms Slottje.

1. In summary, we find there to be no evidence whatever of any sex discrimination against Ms Slottje by the Council or any of its employees.

Orders

1. For those reasons Ms Slottje's complaint of unlawful discrimination on the grounds of sex is dismissed.

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Decision last updated: 16 June 2011