Tadawan v State of South Australia

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Tadawan v State of South Australia [2001] FMCA 25

HUMAN RIGHTS – racial discrimination – Racial Discrimination Act section 27 – whether failure to re-employ was victimisation because of knowledge of complaint of racial discrimination to Equal Opportunity Commission – whether causative relationship between the making of the complaint and the decision not to re-employ – no causative relationship found

EVIDENCE – whether inference of victimisation could be made although no direct evidence of it – inference not made

COSTS – no order for costs against an applicant whose claim, whilst justified, was ultimately unsuccessful

Racial Discrimination Act (Cth) 1975 s27

Elekwachi v Human Rights and Equal Opportunity Commission (1997) 1183 SCA, followed

Bradshaw v McEwans Pty Ltd (1951), unreported, referred to
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345, referred to

Low v Australian Tax Office [2000] FMC 6, referred to

Christine McKenzie v The Department of Urban Services & Anor [2001] FMC 20, referred to

Theodore Xiros v Fortis Life Assurance Limited [2001] FMC 15, referred to
ApplicantYohanna Tadawan
Respondent:  State of South Australia
File No:AZ94/00
Delivered on:  10 May 2001
Delivered at:  Adelaide
Hearing Date:  30 April, 1 May, 2 May 2001
Judgment of:  Raphael FM

REPRESENTATION:

Solicitors for the Applicant: Mr S. Blewett of Lieschke & Weatherill Adelaide
Solicitors for the Respondent: Ms A. McLean of Crown Solicitors Office Adelaide

ORDERS:

Application dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

ADELAIDE REGISTRY

No AZ94 of 2000

YOHANNA TADAWAN
Applicant

and

STATE OF SOUTH AUSTRALIA
Respondent

REASONS FOR JUDGMENT

WHAT IS THE NATURE OF THE COMPLAINT

The applicant Ms Yohanna Tadawan is a Filipino born teacher of English as a second language. She brings a claim against the State of South Australia as the entity responsible for the activities of the Department of Education Training and Employment and in particular the English Language and Literacy Service of that Department.
Ms Tadawan complains that the respondent was in breach of s.27 of the Racial Discrimination Act 1975;
27(2) [Victimisation] A personal shall not –
(a)refuse to employ another person;
(b)dismiss, or threaten to dismiss, another person from the other person’s employment;
(c)prejudice, or threaten to prejudice, another person in the other person’s employment; or
(d)intimidate or coerce, or impose any pecuniary or other penalty upon, another person,
by reason that the other person –
(e)has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or…
The breach complained of by Ms Tadawan is that as a result of her making a complaint to the South Australian Equal Opportunity Commission on 15 April 1998 of alleged racial discrimination in employment she was not offered any further employment as an hourly paid instructor (HPI) with the English Language and Literary Service (ELLS) after term 2 of 1998. In her cross-examination the applicant accepted that the decision not to provide her with employment in term 2 of 1998 was made in March 1998 before her complaint had been lodged with the Equal Opportunity Commission. She therefore accepted that there could been no victimisation in respect of that term. The applicant also agreed that if the respondent could establish that it was not aware of her complaint until after 9 July 1998 there could have been no victimisation in regard to any deployment decisions for term 3 made before that date.
The applicant claims that as a result of the victimisation which she suffered she was not offered employment by ELLS for the remainder of 1998 and 1999 although she kept in regular contact with them and requested employment. In March 2000 she obtained employment as a full time teacher at the Normanton Campus of the Mt Isa Institute of TAFE. She claims damages for loss of earnings during the period of the alleged victimisation until March 2000 as well as compensation and an apology from the respondent.

WHAT FACTS DOES THE APPLICANT RELY ON TO ESTABLISH HER CLAIM?

The applicant swore an affidavit on 30 June 2000. She also gave oral evidence. Ms Tadawan explained that she was born in the Philippines in 1963 and was educated up to tertiary level. Her first degree was in civil engineering but she then decided to change career paths and completed a Masters of Arts in teaching with a major in English (English as second language and literature). She was awarded this degree in the Philippines in 1990.
Ms Tadawan explained that in the Philippines all residents are brought up to speak their own dialect in ordinary family conversation but that English is the language of government and the law, education and commerce. Every Filipino child comes to school and there begins his or her study of the English language. She says that English is truly the second language of the Philippines.
The Masters Degree which Ms Tadawan obtained included subjects in English normally covered by an undergraduate student but also teaching subjects. The academic transcripts which formed part of an exhibit annexed to the affidavit of Renee Wyatt does not mention the words “English as a second language” and does appear on the face to be heavily weighted towards the types of subjects that would more normally be seen in a degree in which English is taught as a foreign language.
In her evidence Ms Tadawan explained that the teaching experience which she had obtained in the Philippines was more ESL than EFL directed. She gave evidence that she taught students skills in dealing with hurdles that would present themselves in English in their careers. For example, she taught students who hoped to apply for employment with the US Navy how to compile acceptable CVs and to understand the requirements of a job description written in English. She says that this and other facets of her teaching experience were aimed at practical matters rather than a purely formal or grammatical approach to the language which was how it would be taught as a foreign language.
Ms Tadawan arrived in Adelaide in 1995 and towards the end of that year first sought employment as an HPI at ELLS. She accepts that she was given an interview for the position by Ms Wyatt and that Ms Wyatt explained to her that she did have some concerns about the relevance of her qualifications and her experience. She started work in the new arrivals section but was moved after some while to the State Government funded program. The former dealt with students who frequently had very little to no English at all whereas the latter dealt with people who had some knowledge of English having been in the country for a longer period of time. HPI employment contracts were generally of one term in length and one term was generally ten weeks. About two weeks before the end of each term a request for expressions of interest for further employment were usually sent out to existing HPIs and Ms Tadawan continued to obtain work under this system until the end of term 1 in 1998.
During the period in which she was employed as an HPI Ms Tadawan made two applications for more permanent employment. The first was for a lectureship at the TAFE which the evidence indicates she made in 1996. She was unsuccessful in this application not being placed on a shortlist for interview. The reasons given included doubts about her qualifications i.e. whether they were truly in English as a second language and concerns about her own command of the English language as evidenced in her application form and particularly her lengthy response to the selection criteria which was criticised for grammatical mistakes. In 1998 she made a further application for what is known as a “director approved” post. This is short term posting usually of no more than six months that can be filled from internal candidates without the necessity for outside advertisements. She was unsuccessful in this application and once again her qualifications were brought up as was the feedback from both other staff and students upon her actual teaching ability. It was her disappointment at not obtaining this position and advice given to her by other teachers at ELLS that encouraged Ms Tadawan to make the original application to the Equal Opportunity Commission.
The complaint made by Ms Tadawan to the EOC of South Australia was based on the fact that she had been told to comply strictly with a 500 word limit on her application which she did. However, she said that other people who made applications did not restrict themselves in this way, disadvantaging her. She alleged that the other reasons given for passing her over were her lack of computing skills and experience with low level language students. She believes that she had a perfectly adequate command of computing skills and had performed well with students of low level language skills.
When the list of HPIs who would be offered employment in term 1 of 1998 first came out in December 1997 Ms Tadawan was not upon it. She had been told that a downturn in student numbers had been anticipated. She made representations and as a result of those and changes in staffing requirements she eventually got eight hours per week work in that term. She had previously been on between 17 and 20 hours per week. She was told that the reduction in hours had been due to an unsatisfactory work report that she had obtained.
Ms Tadawan had two work reports made upon her during the period she was an HPI. Both reports were produced in evidence and appear to be reasonable favourably. Certainly she does not achieve a mark less than average in any subject and higher marks in a number. Constructive criticism is provided. Ms Tadawan states that the second report was done hurriedly because she had heard about the possible downturn and wanted to show that the quality of her teaching had improved since the first report. She therefore organised the report rather hurriedly towards the end of 1997. This is reflected in some remarks made by the reporters.
Ms Tadawan also claims that she was unaware of any student dissatisfaction with her teaching and says that she carried out evaluations of her teaching with her students and these evaluations were positive. Ms Tadawan appeared to accept that whilst her experience with persons who knew absolutely no English might be more limited she did have experience which was relevant to ELLS particularly in the area of preparation for tertiary studies.
In her evidence in chief Ms Tadawan commented upon some of the affidavits provided by the respondents generally denying suggestions that her teaching work was not of the highest quality or that it was heavily biased towards formal or grammatical teaching and therefore of less relevance to the type of “survival training” that Ms Wyatt described as being required for ESOL students.
Nowhere in her evidence was the applicant able to point to any particular act on the part of the respondents which evidenced the victimisation of which she complained. In his opening Mr Blewett who appeared for the applicant made it clear that this was not that type of case. He said:
“There is no direct evidence that the reason for non-employment was the complaint. This has to arise from inferences from the following:
(i)The applicant’s superior qualifications and experience;
(ii)That the applicant was “first reserve” in 1998 but was not given any work;
(iii)That new employees were taken on in preference to providing work for the applicant;
(iv)The lack of cogent reasons for the preference of new employees.”

WHAT FACTS DOES THE RESPONDENT DISPUTE AND HOW IS THAT DONE?

The respondent provided a detailed rebuttal of the applicant’s claim by filing a series of affidavits from the educational manager of ELLS, Ms Wyatt and other members of staff who were either on the deployment team which was responsible for employing HPIs or were themselves teachers working at ELLS with the applicant at the relevant time.
The first witness was Ms Wyatt, the educational manager. Ms Wyatt explained the operation of ELLS and the manner in which teachers were chosen. She confirmed that there were full time salaried employees, shorter term contract employees whose contracts were not the subject of advertisements and HPIs. She explained the method of choosing HPIs both initially and from term to term. She explained that the applicant had first applied for a casual teaching position in November 1995 and that she had conducted an interview with her. She had certain reservations about Ms Tadawan’s suitability which she explained to her. These were that she had no ESL (English as a second language) experience, just EFL (English as a foreign language) experience. Ms Wyatt thought that Ms Tadawan would be better for upper level work and technical English and that she had a very grammatical/building block approach, with no awareness of language in context which would be necessary for the new arrivals program. However, Ms Wyatt thought that Ms Tadawan was very smart and would probably learn very quickly.
Ms Wyatt confirmed the history of Ms Tadawan’s application for a full time job in December 1996 and confirmed that the marginalia on copies of Ms Tadawan’s application sheet were made by her. In cross-examination she made it clear that she thought that the application was of a very poor standard. In her affidavit she stated that she gave Ms Tadawan feedback on this application which Ms Tadawan received graciously. However, she (Ms Wyatt) did not accept that the explanations given for the quality of the applicant’s work excused it.
Ms Wyatt then dealt with the second application for the director approved position which Ms Tadawan also did not obtain and the circumstances surrounding the decision first to offer her no hours in term 1 of 1998 and then to offer her eight hours.
Ms Wyatt stated that the reason Ms Tadawan was not offered any further employment after the end of term 1 1998 was because hours were being restricted and in this atmosphere more attention was being paid to the particular abilities of staff and their suitability for the smaller amount of work that was available. In this context Ms Tadawan’s deficiencies became more important.
Ms Wyatt was taken through those other members of staff who at first had not received work in that term and then were given it. She provided explanations for her decisions. It is to be noted that the system which operated was that the first decisions on employment for a new term were made at the end of the old term by a small committee known as the deployment team. They set the main ground rules and worked upon assumptions of student numbers and funding known to them at that time. Things invariably changed and thereafter new deployment schedules known as “Mark 2, Mark 3 etc.” would issue. These were prepared, not by the deployment team but by Ms Wyatt herself, based upon her understanding of the decisions made by the deployment team.
Ms Wyatt stated that she had not known about the complaint which Ms Tadawan made to the Equal Opportunity Commission until a letter was received by the Department in mid July 2000. The fact of the complaint did not enter into any decisions made by her at any time and most certainly could not have entered into any decision made by her prior to that time.
Ms Wyatt explained that it was the policy of ELLS to give priority in employment to persons who were currently employed. That priority had its limitations. For example, ELLS believed that wherever possible its teachers should be given the amount of work they told the Department that they wanted with, in respect of HPIs, a maximum of twenty hours per week. It was therefore not ELLS’ policy to divide up the work so that all current teachers got work with reduced hours at times when reductions had to take place. When that occurred HPIs would be chosen by merit and in particular by the suitability of their qualifications and experience for the teaching loads that were going to exist. It was for this reason that Ms Tadawan was not given work in term 1 of 1998 originally but when eventually eight hours in the general division came up it was considered that she would be a able to undertake these and was suitable to do so. However, by term 2 the situation had further changed and other persons were considered to be more suitable for what work was left.
Ms Wyatt was cross-examined at very considerable length by Mr Blewett on behalf of the applicant. He also took Ms Wyatt through each of the staff who were employed after Ms Tadawan’s employment ceased until March 2000. Ms Wyatt provided explanations as to why each of those members of staff were employed.
In the course of her evidence Ms Wyatt discussed the circumstances surrounding Ms Tadawan’s second report. She also discussed the use of these reports in choosing HPI candidates. At the time the first decision in relation to term 1 of 1998 was made Ms Tadawan had had only one report made upon her. Her score in that report was 57 which was not particularly high. It appears that knowing that jobs would be harder to obtain in 1998 Ms Tadawan rather urgently arranged for a further report to be made on her by two teachers, Ms Giglio and Mr Banks. Neither of these teachers were particularly happy about preparing the report. Ms Giglio because it was done in a hurry at the end of the term when she would have like to have had a whole term to observe the candidate and Mr Banks because he believed that Ms Giglio had overmarked the applicant and that she was a less able candidate than the report revealed.
This report was not available at the time the first decisions were made in respect of term 1 1998, but it was available by the time the later decisions were made. It may have been influential in getting Ms Tadawan the eight hours which she got in that term. However, this came at a price. Ms Wyatt gave evidence that both Ms Giglio and Mr Banks had expressed to her their concern that they had been approached by Ms Tadawan who expressed considerable annoyance at what she considered to be her low ranking in the report. This ranking was in fact approximately 69 which was higher than her previous ranking. Ms Wyatt indicated that she was concerned that Ms Tadawan had attempted to pressure the examiners into raising her mark.
Ms Wyatt’s evidence was that by 1998 these reports were, in any event, much discredited. This was because they were perceived as subjective and were not subject to adequate controls or any moderation or appeal. Ms Wyatt said that by this time they were much less important in making any decision on employment than they had been. Ms Wyatt said that she and the team relied more on their own knowledge of applicants and the feedback that they had got upon them from other members of staff and students.
It was Ms Wyatt’s evidence that she told the team that Ms Tadawan was available for employment for term 2 of 1998 but she was not clear whether she had done that in respect of term 3. She was certain that the availability of Ms Tadawan for employment was not raised thereafter. This is consistent with her evidence that by that time Ms Tadawan was no longer considered to be a current employee. Her evidence indicated the priority given to such persons was shortlived and that once it had been exhausted such a former employee ranked with all other applicants for the provision of work when it became available.
Ms Giglio gave evidence from her affidavit which tended to corroborate that of Ms Wyatt in relation to the criticisms of Ms Tadawan’s abilities. Ms Giglio had first hand experience of Ms Tadawan as they shared a class, although that did not mean that they always sat in class together. Ms Giglio was in receipt of feedback from students concerning Ms Tadawan’s abilities and noted that it was considered that she sometimes moved too fast through the course leaving the less able students behind. Ms Giglio explained how she attempted to provide some mentoring to the applicant but she found that the applicant was not particularly receptive to this. Ms Giglio was also the equal opportunity delegate and it was her who the applicant first approached concerning the complaint. However, she seems to have done this in a rather roundabout way first of all suggesting that she was speaking on behalf of a student. The complaint she explained to Ms Giglio seemed to be one of discrimination arising out of the failure to obtain employment because of her accent. Ms Giglio explained to the applicant that she did not believe this constituted racial discrimination and that accent and race were distinguishable. Ms Giglio did not believe that the applicant really proposed to take the matter any further after she had given her this explanation. The time when the applicant made these remarks to Ms Giglio was not entirely clear. Ms Giglio first thought it was at the end of 1997 but later agreed that it may well have been in term 1 of 1998. In any event Ms Giglio confirmed that she was unaware that an actual complaint had been made until late in 1998 when she returned from long service leave and was given this information by another member of staff. Ms Giglio denied discussing the possibility of the complaint being lodged with other members of the staff.

Mr Banks gave evidence on affidavit which dealt with the situation surrounding the giving of the work report. He did not believe that the assessment was reflective of a long term evaluation. He made a number of observations during the teaching session and gave Ms Tadawan some informal feedback. He had concerns that there were a number of confusing incidents for the students and that she was not sufficiently interactive or able to engage with the students. He said that he advised either Ms Tadawan or Ms Wyatt that Ms Tadawan may need to have a mentor to enhance her skills if she was re-employed in 1998 and recalls that his comments were not well received at the time. He also recalls that Ms Tadawan made it clear to him that she was not happy with her grades and thought that she should have got higher markings.
Ms Annersley gave evidence that she had had discussions with the applicant and that she had been on the deployment team from the beginning of 1998. She discussed the controversy over work reports and recalled that after Ms Tadawan had not been given any hours for the first term of 1998 she came to see her. Ms Annersley was not a member of that team which made the recommendations at the end of 1997 but she did prepare a memorandum of her discussions with Ms Tadawan which were exhibited to her affidavit and which may have helped Ms Tadawan obtain the eight hours which she was given for term 1 of 1998 in a later decision of Ms Wyatt.
Ms Annersley recalls that the issues raised in relation to Ms Tadawan in term 2 was that her experience was less relevant than that of other HPIs as she had a background of teaching English as a foreign language in the Philippines at a tertiary level as opposed to teaching English as a second language to immigrants with varying levels of education and knowledge of English in a settlement situation. She was also influenced by the application for the position of lecturer made by Ms Tadawan in 1996 that Ms Wyatt showed to the deployment team.
Ms Annersley did not recall any discussions after term 2 of 1998 relating to Ms Tadawan. She said that as Ms Tadawan was not employed in term 2 and there was an ongoing decline in funding she would not have been considered in a formal way by the deployment team. She denied that at any stage in the deployment process was the fact that Ms Tadawan had made a complaint to the EOC raised nor was it influential in any decision that was made about her.
Ms Ann Alfred was the next witness called. She deposed that she was an educational manager representative on the deployment team which considered Ms Tadawan at the end of 1997 and in 1998. She was also Ms Tadawan’s manager. She was the person who was allocated to inform Ms Tadawan after the deployment of staff for term 2 of 1998 that she had not been allocated any hours of instruction.
Ms Alfred confirmed that she had told Ms Tadawan in a feedback session that her background and experience was less suitable in comparison with others for the courses offered at ELLS, especially in terms of the flexibility to be deployed anywhere in the program. There were other concerns relating to her word processing skills, her written and oral English, and the 1996 application which she had made.
Ms Aflred also had spoken to Ms Tadawan about the 1996 application and the 1998 application that she had made for more permanent positions. She talked to Ms Tadawan about her lack of experience in the kind of work carried out at ELLS.
Ms Alfred explained that whilst it was the policy of the deployment team to try and give available work to those currently employed, once a person had ceased being a current employee they were considered in comparison with all other available candidates. In Ms Tadawan’s circumstances this would mean that she had some priority for term 2 of 1998 but not really any thereafter.
Ms Alfred said that Ms Tadawan was not the only person who ceased to receive employment in 1998. A Maria Misoni was not given further work because of merit and has not been employed since.
Ms Alfred also confirmed Ms Wyatt’s evidence that reliance upon work reports as a method of establishing priority was being phased out by 1998. Ms Alfred also explained some of the criticisms that were being made of Ms Tadawan’s teaching ability. These seemed to centre around the feeling that she need to provided a more Australian teaching style because her students did not believe that she was able to provide them with familiarity with Australian idiom. Ms Alfred said that this was one of the reasons why Ms Tadawan was put in a joint teaching position with Ms Giglio, and thought that had Ms Tadawan had enough time she would have turned out to have been an acceptable teacher at all levels. Unfortunately her employment was terminated prior to this occurring. Ms Alfred agreed that she did not tell Ms Tadawan the reason why she was being placed as a conjunction teacher with Ms Giglio.
Ms Alfred said that she could not agree that Ms Tadawan’s name was not mentioned in deployment team meetings after term 2 of 1998. She thought that would have been inconsistent with the practice of the deployment team. She recalls Ms Wyatt mentioning from time to time that Yohanna was looking for work. She was surprised at receiving the complaint. She did not expect Ms Tadawan to have done that, but denied that she was offended or disgusted by it. She was disappointed. She felt that Ms Wyatt’s reaction was similar, but it did not affect any decisions made about Ms Tadawan’s employment.

FINDINGS OF FACT

Both advocates accepted that there was very little dispute between them on the basic facts in this case. The real dispute lay in whether I could draw the inferences suggested by Mr Blewett from those facts. There were, however, some areas in respect of which unagreed facts were important.
The first area relates to Ms Tadawan’s teaching abilities. I am satisfied from the evidence produced by the respondent that Ms Tadawan did have limitations on her teaching ability. I am satisfied that she was not able to be completely flexible within all the programs run by ELLS, and that she was more suited to the type of student who was preparing for some form of tertiary study. She was not particularly well suited by virtue of her previous education and experience to teaching newly arrived migrants with very poor knowledge of English.
I also find that Ms Tadawan may not have been ideally receptive to criticism. I find that some feedback was given to her throughout her employment about her teaching methods, and that when given it was received graciously. However I do not believe that the advice was taken to heart and efforts made to improve. I also find that there was a reluctance to explain clearly to Ms Tadawan her weaknesses and what ELLS proposed to do in order to strengthen them. This carried over into the methods of communicating more unpleasant decisions such as those not to provide an HPI with more hours, which I shall discuss later.
I find that Ms Tadawan on becoming aware of the possibility of a downturn from term 1 of 1998 hastily arranged a work report at the end of term 4 in 1997, and that when the results of that report were not as good as she had hoped she complained to Mr Banks and Ms Giglio, and that those complaints were passed to Ms Wyatt.
Mr Blewett took Ms Wyatt through the staff deployment lists for each of the terms following term 1 in 1998. He pointed out where new staff were employed. In each case Ms Wyatt had a response as to why Ms Tadawan was not preferred over the other applicant which was reasonable in all the circumstances, and which did not suggest that a decision had been taken as the result of the knowledge of Ms Tadawan’s complaint. Generally speaking, the work given to other teachers was either very specialised – such as a program for health professionals – or in the areas where students with little command of English were being taught. This was an area that Ms Tadawan had demonstrated weakness in.
I find that there was no general knowledge of the complaint that had been made by Ms Tadawan to the EOC until around 9 July 1998, and that no decisions made prior thereto could have been influenced in any way by the complaint.
I find that the evidence of Ms Alfred corroborated that of previous witnesses that the applicant’s teaching abilities were not entirely “in sync” with the requirements of ELLS. This was particularly the case in regard to her flexibility, ie. her ability to teach students at the lowest level. Ms Alfred confirmed that the applicant’s experience of tertiary students from a mono cultural background limited her flexibility. Ms Alfred also confirmed, and I find, that students had complained that the applicant was not a native Australian speaker. This was the reason why Ms Tadawan was placed in a co-teaching position with Ms Giglio. I find that by the end of 1997 the work report was no longer being regarded as a particularly valuable tool for determining which HPI's received continuing work, particularly when work was limited. I find that there is no value in comparing the abilities of the applicant and other staff who were employed by comparing marks through the work report.
I find that Ms Tadawan’s position was actively considered in December 1997 and probably again in about March 1998, but by that time the deployment team felt she should be looked at strictly on merit in comparison with other teachers, rather than with some priority as a result of being an existing teacher. I find that the priority given to existing teachers was short lived, although I believe that an impressive teacher who left the organisation and then returned would also be sympathetically considered.
I find that Ms Wyatt was distressed to learn that Ms Tadawan had complained to the two raters who provided her second work report. Ms Wyatt was not cross-examined about this to any great extent, and no scenarios about the effect it might have had on her were put to her. I am conscious of the limitations this might place on any conclusions I might make about her conduct arising out of this incident, but I believe that it may have significantly influenced Ms Wyatt’s views upon Ms Tadawan. Certainly there was no suggestion that her views in this regard were racially influenced, and therefore they could not be the subject of a discrimination complaint.

CONTENTIONS OF LAW

It has been agreed between the parties that although the complaint which Ms Tadawan made was made to the Equal Opportunity Commission of South Australia, this Commission was empowered to deal with such a complaint either under the State or the Federal Act. In this case it dealt with the matter under the Federal Act. It was therefore accepted by the respondent that a breach of section 27 of the Racial Discrimination Act would have occurred if it was established that one of the reasons that Ms Tadawan did not receive any further offers of employment from ELLS arose out of the existence of the complaint. The rather complicated arrangements between the State of South Australia and the Federal Government in relation to these matters was discussed by Mansfield J in Elekwachi v Human Rights and Equal Opportunity Commission (1997) 1183 SCA and I am satisfied that there is no legal impediment to the proceedings being brought in the Federal Magistrates Court.

FINDINGS OF LAW

In his closing submissions Mr Blewett argued that the task before me was to decide
(a) Was there a causative relationship between the making of the complaint and the refusal to employ?
(b) Can one draw an inference that there was such a causative relationship from the known facts?
In the absence of direct proof an inference may be drawn from the circumstantial evidence. The High Court has said that “where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise…” (Bradshaw v McEwans Pty Ltd (1951), unreported, applied in TNT Management Pty Ltd v Brooks (1979) 23 ALR 345).
Mr Blewett submitted that the inference could be drawn because there was no other logical explanation for the respondent’s treatment of the applicant after July 9 1998. He said the non-employment was contrary to normal practice and could not be explained on the marginal comparative preference grounds that explained why Ms Tadawan had been passed over prior thereto. He said that Ms Wyatt controlled the process and that her evidence had been that she considered the complaint to be outrageous and offensive. This influenced her in a decision which she had made not to put Ms Tadawan’s name forward to the deployment team and not to provide Ms Tadawan with work where the choice was left entirely to herself. He submitted that the evidence of Ms Wyatt should not be accepted because the force of the case had changed from its original presentation in that there was no funding shortfall as originally suggested, that not all of the other candidates had superior qualifications and experience as had been previously suggested, and that there was no exaggeration of Ms Tadawan’s marks in her work report as a result of a request by Ms Tadawan to the raters. He also submitted that Ms Wyatt had backtracked in her evidence on the policy for the retention of HPI staff and that she had brought to the fore what was described as “serious long term concerns” about Ms Tadawan’s teaching performance which could not really be identified and were certainly not raised with the applicant. She elevated the 1996 application document to a status which prevented Ms Tadawan’s re-employment. She also elevated Ms Giglio’s comments about Ms Tadawan’s abilities to the status of a determinant.
It is true that the emphasis of the respondent’s case changed, and that as it developed Ms Tadawan’s weaknesses as a teacher were more strongly pushed. But once the applicant has accepted (as she did) that a reasonable and proper marginal competence decision had been made in respect of her at a time that was prior to any complaint being made, it is exceptionally difficult to persuade a judge to draw an inference that at a later date when any claim to priority that the applicant might have had was exhausted, she had been excluded because she had made a complaint to the Equal Opportunity Commission.
Ms McLean for the respondent reminded the Court that decisions in relation to the term 3 HPI deployments in 1998 were posted on 18 June in that year, and there had therefore been six months of decisions relating to Ms Tadawan before her complaint was known. She submitted there were clear reasons prior to July why the applicant was not employed. There was agreement within the whole of the deployment team in December 1997 and March 1998 when her position had clearly been considered. In March 1998 she was also unsuccessful in obtaining a director approved position and nothing had changed since that time concerning her abilities or experience that would have indicated that she should be considered other than on comparative merit in the future.
It is my opinion that the real decisions about Ms Tadawan were made in the early part of 1998. I was troubled by the introduction of the 1996 application some eighteen months later as an example of Ms Tadawan’s deficiencies. As mentioned previously I was also troubled by Ms Wyatt’s evidence concerning her reaction to the pressure placed on Ms Giglio and Mr Banks. Because the first deployment meeting at which the application form was raised took place before the results of the work report were known, it would be wrong to say that one influenced the other. But the facts as I have found them do allow for the possibility of other scenarios which would exclude the fact of the complaint from being causative of a decision not to re-employ. In all these circumstances I am not satisfied that I can draw the inferences Mr Blewett directed me to. I am of the view that in the absence of a significant upturn in the work of ELLS within the areas in which Ms Tadawan was accepted to have been a competent teacher she would not have secured re-employment. However, whatever the combination of reasons for this decision may have been, they did not in my view involve victimisation.

WHY DID THE APPLICANT’S CLAIM FAIL?

The applicant’s claim failed because the foundations upon which it was built, in the end, turned out to be of sand. Ms Tadawan believed that she could prove that the hiring decisions that were made following her loss of employment could only be explained by prejudice against her arising out of the complaint. She assumed for this purpose that her own teaching ability was a given and that if there were weaknesses they were slight. This was a not unreasonable supposition to make because, regrettably, communication between management and staff at ELLS was not all that could have been expected. This too is understandable. Turnover of staff at ELLS was high. Funding for courses came and went. There were chops and changes in the mix of students that were likely to require courses. Whilst most teachers were flexible, there were a number, particularly amongst this group (HPI’s) who had particular skills that were only needed from time to time. The management were constantly being required to tell people that there were no more hours being offered to them. This is a painful duty, particularly where staff have become friendly and worked together to produce a socially desirable outcome. In these circumstances it was natural for management not to be too negative, either with existing teachers or with teachers whose hours were to be terminated. But the result of this conduct is confusion and misunderstanding. In this case that confusion and misunderstanding translated into a complaint and then into these proceedings.
The applicant also misunderstood the selection processes. She did not understand that any priority that was afforded to current members of staff was just that. Once a member of staff was no longer current the priorities soon evaporated. It was a priority born out of the same concerns discussed in the previous paragraph, ie. the difficulty the management had in constantly having to tell people that they would be losing their jobs, and the difficulty in motivating staff who were likely to be placed in that position. Once the applicant’s priority was lost she was placed in a pool with a number of people who had either more flexibility than herself in relation to her teaching abilities or specialised teaching abilities which the applicant did not have. When those facts were put together with the requirements of ELLS for the forthcoming periods it was clear that it would be difficult for the applicant to be re-employed. This was especially so when one remembers that the policy of ELLS was to try and give teachers as many hours as they requested and not to divide available hours between a large number of teachers when that would result in most of them receiving less money than a living wage.
When the proceedings and the complaint which commenced them are looked at in this light, it can be seen how difficult it is in the absence of any direct evidence, to establish from inferences alone that the applicant was the subject of victimisation.

DECISIONS AND ORDERS

The applicant’s claim against the respondent is dismissed.

COSTS

The question of costs in Human Rights and Equal Opportunity Matters has been discussed in the Federal Magistrates Court on a number of occasions. (Low v Australian Tax Office [2000] FMC 6, Christine McKenzie v The Department of Urban Services & Anor [2001] FMC 20, Theodore Xiros v Fortis Life Assurance Limited [2001] FMC 15.)

The Court has accepted that these matters were normally considered to be “no costs” matters, as evidenced by the practice of state tribunals and the fact that there was no power in HREOC to award costs. The Court has recognised that where proceedings are brought a successful party should not have the benefit of his or her victory lost in costs. The Court is also anxious not to discourage litigants from bringing claims which may well have merit because of the fear of an adverse costs order in the event that the applicant is unsuccessful. On the other hand, the Court can use its powers in relation to costs to discourage unmeritorious claims.
Although the applicant has not succeeded in this case the Court is of the view that her claim was justifiable. It was brought against the background of poor communication, which I have attempted to discuss in some detail. I believe that this is a case where the court should acknowledge the “no cost” nature of the jurisdiction and make no order.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate
Dated 2001

[2001] FMCA 25

18 May 2001