Tleyji v The TravelSpirit Group Pty Ltd

[2005] NSWADT 294

CITATION:	Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Pascale Tleyji RESPONDENT The TravelSpirit Group Pty Ltd
FILE NUMBER:	041118
HEARING DATES:	9/08/2005
SUBMISSIONS CLOSED:	08/09/2005
DATE OF DECISION:	12/15/2005
BEFORE:	Britton A - Judicial Member; Lowe A - Non Judicial Member; Schneeweiss J - Non Judicial Member
APPLICATION:	Carers' Responsibility Discrimination - in work - Race Discrimination - In work - Sex Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Bonella v Wollongong City Council [2001] NSWADT 194 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commonwealth Bank v Human Rights and Equal Opportunity Commission (‘Finance Sector Union Case’) (1997) 150 ALR 1 Commonwealth v HREOC (1995) 63 FCR 74 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Shire Council [2005] NSWADT 9 Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1 Hall v Sheiban (1985) ALR 503 Jones v Dunkel (1959) 101 CLR 298 Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 Martin v McKensey (No. 2) [2003] NSWADT 126 Spencer v Greater Murray Area Health Service [2005] NSWADT 138 Styles v The Secretary of the Department of Foreign Affairs and Trade (1989) 23 FCR 251 The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16 Waters v Public Transport Corporation (1991) 173 CLR 349 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26
REPRESENTATION:	APPLICANT M Tibby, barrister RESPONDENT S Tan, solicitor
ORDERS:	1. That part of the complaint of discrimination on the grounds of ‘responsibilities as a carer’ that relates to the Respondent’s refusal to provide the Applicant part-time work in 2004 is substantiated and the balance of the complaint is dismissed; 2. The complaint of discrimination on the grounds of race is substantiated; 3. Respondent to pay the Applicant within 21 days damages in the sum of $5,000

1 Pascale Tleyji complains that her former employer, the TravelSpirit Group, unlawfully discriminated against her in employment. She claims that by refusing her requests to, first, come back early from maternity leave and second, work part-time after her return, TravelSpirit discriminated against her on the grounds of carer’s responsibilities and sex. She also alleges that when she returned from maternity leave she confronted an unwelcoming and hostile environment and that her duties had effectively been “dumbed down”. In addition she makes a complaint of race discrimination, namely, the alleged directive that she was not to speak Arabic in the office.

2 TravelSpirit denies these claims.

Scope of Complaint

3 The Anti-Discrimination Board referred three complaints to the Tribunal. Two are complaints of discrimination on the ground of carer’s responsibilities and sex (s 49T and s 24 of the Anti-Discrimination Act 1977 (the AD Act)) and relate to the same conduct. The third is an allegation of discrimination on the ground of race (s 8(2)).

4 The scope of the complaints on the grounds of carer’s responsibilities and sex was an issue in these proceedings. In a summary prepared by the Tribunal and issued to the parties following a case conference in September 2004, the complaints were characterised as four separate allegations:

First, the alleged variation of Ms Tleyji’s terms and conditions of employment.

Second, the alleged refusal to allow Ms Tleyji to return to work early from maternity leave.

Third, the alleged refusal to allow Ms Tleyji to work part time after her return from maternity leave.

Fourth, TravelSpirit’s refusal to have regard to the period of maternity leave when calculating Ms Tleyji’s sick leave entitlements.

5 Ms Tleyji asserts that the alleged change in her conditions of employment (Claim One); TravelSpirit’s refusal to allow her to return to work part-time before her scheduled return from maternity leave (Claim Two), and count unpaid maternity leave when calculating her sick leave entitlements (Claim Four) constitutes direct discrimination on the grounds of carer’s responsibility (s 49T (1)(a) of the AD Act)) and sex (s 24(1)(a)).

6 In relation to each claim Ms Tleyji must establish on balance:

First, that the conduct is capable of falling within s 49V(2) or s 25(2).

Second, in the same or similar circumstances, a staff member without family responsibilities/male staff member would have been treated more favourably (“differential treatment”).

Third, one of the reasons for any less favourable treatment was because she had family responsibilities/is a woman (“causation”).

7 Ms Tleyji worked as a senior travel consultant at the TravelSpirit’s Eastwood office from September 1999 until her resignation in July 2004. She took maternity leave at the end of April 2003 and returned to work on 3 May 2004.

8 Ms Tleyji alleges that on her return from maternity leave some of her conditions of employment had been changed and she was disadvantaged as a result.

9 A staff meeting was called at the Eastwood office the second day after Ms Tleyji’s return. The meeting was attended by Mary Olivieri, TravelSpirit’s Manager of Business Development. Ms Olivieri was responsible for overseeing the Eastwood office but was not based there.

10 Ms Olivieri told the meeting that it had been decided to introduce the following changes:

Rostered Days Off - staff were no longer permitted to take a Monday or a Friday as a RDO.

Lunch breaks- were reduced from one hour to thirty minutes. Staff were given the option of either working to 5.30 pm and taking an hour for lunch or leaving at 5 pm and taking a half-hour break.

Parking - would no longer be organised on a ‘first come first served’ basis. Instead Lydia Scuglia, the manager of the Eastwood office, was to have exclusive use of one of TravelSpirit’s two parking spots. The other was to be available to staff on a rotational basis.

11 The stated reasons for these changes were:

RDO’s – Mondays and Fridays, it was asserted, were the busiest days of the week and thus required the maximum number of staff.

Lunch breaks -An administrative error had uncovered that staff at the Eastwood office were taking an hour for lunch and not working their contracted 38 hours per week (or part thereof).

Parking –the nature of Ms Scuglia’s duties meant she occasionally had to use her car throughout the day and, on others, work late. Accordingly, it was considered necessary that she be guaranteed parking.

12 Ms Tleyji told the meeting she opposed these changes.

13 Findings and Conclusions Ms Tleyji must show that she was subjected to less favourable treatment and that one of the reasons for that treatment was her gender or responsibilities as a carer.

14 The evidence shows that the changes to lunch breaks and RDOs applied equally to all staff. Ms Tleyji was treated no worse (or better) than her colleagues.

15 In relation to parking, one member of staff, Ms Scuglia, was treated ‘more favourably’ than Ms Tleyji. However, Ms Scuglia, in our view, is not an appropriate comparator i.e. a person in the same or similar circumstances as Ms Tleyji. While, like Ms Tleyji, Ms Scuglia worked full-time, she held a different position. She was Ms Tleyji’s ‘boss’. Whether it was fair (however that is to be judged) that she was singled out for this perk, is not the issue here. The issue is whether she is an appropriate comparator. In our view, the better comparators would be Ms Tleyji’s co-workers who, like her, had restricted use of the remaining car space.

16 Ms Tleyji was understandably upset that on the second day after her return she was confronted by changes in her conditions which she believed to be unreasonable. Whether as a matter of law it was not open to TravelSpirit to do so without Ms Tleyji consent, as she contends, is irrelevant. To succeed in her claim, Ms Tleyji must establish first, that she was afforded differential treatment and second, that one of the reasons for that treatment was because of her gender or carer’s responsibilities. Neither in our view is established.

17 Accordingly, we dismiss these parts of the complaint.

Hostile work environment

18 Ms Tleyji claims that on her return her colleagues were “a bit cold towards me, … they were not what they were before I left to go on maternity leave.” In addition, she claimed they were unhelpful and gave as an example, their failure to assist her to learn new procedures. This is denied.

19 It is often difficult for a complainant to articulate how the ‘temperature’ at the workplace has changed and on what they base their perception that their colleagues were unwelcoming. Commonly it will rest on a number of minor incidents or slights which, viewed alone, are seemingly innocuous and imperceptible to all but the recipient. That a complainant cannot point to any instances of outright hostility or finds it difficult to pinpoint how their treatment has changed does not necessarily mean that their complaint is without foundation.

20 This complaint rests on a series of broad allegations which are to the effect that Ms Tleyji’s colleagues were cold, unhelpful and unfriendly on her return. Evaluating those allegations is difficult as we have few details about Ms Tleyji’s treatment before she went on leave. We know she believed that her treatment then was “better” but little else.

21 While we accept that Ms Tleyji believes that she returned to a hostile work environment, we are not satisfied on the evidence before us that this was the case.

22 Accordingly, these parts of the complaints are dismissed.

Change in duties

23 Ms Tleyji alleges that when she returned from leave, she was given little work to do and what she was given was less complex and demanding than her pre-leave duties. She claims that on her return her duties were largely restricted to serving “walk in” customers and menial tasks such as tidying the storeroom and replenishing stocks of brochures. Her pre-leave duties had included banking and, when Ms Scuglia was away from the office, signing cheques and preparing financial reports.

24 Walk in clients The practice in the Eastwood office was for one member of staff to be responsible for individual clients. A client generally stayed with that consultant unless the client elected to change or the consultant became unavailable.

25 Before going on maternity leave, Ms Tleyji handed over all of her current files (clients’ travel arrangements not yet finalised) to Ms Scuglia. None was returned when she came back to work. The best evidence is that only a small number of files, possibly four, would have still been ‘active’ by that time. Ms Tleyji claimed the files should have been returned to her. Ms Scuglia explained this did not happen because she believed it was not in a client’s interests to be “handed around the office” and forced to deal with another consultant, even one they knew.

26 Preparing Financial Reports Ms Tleyji’s evidence was that before she took maternity leave, she had been responsible for, among other things, preparing various financial reports which included:

Bank settlement plan (BSP) returns . This involved compiling reports of all tickets issued by the office for the International Air Transport Association.

Daily bank reconciliations.

Commission and Profitability reports. These weekly and monthly reports were prepared for TravelSpirit’s Head Office and set out the business written by each consultant within each reporting period.

27 In addition, Ms Tleyji had been responsible for banking i.e. depositing the daily takings, a task that had been rotated among staff before she took leave.

28 Ms Acquaro was employed as a travel consultant in TravelSpirit’s Eastwood office and gave evidence in these proceedings. She told the Tribunal that her duties had remained largely unchanged since September 2003 and included servicing clients, stamping brochures and preparing monthly reports mainly for express coach tickets and insurance. In cross-examination she agreed that when Ms Tleyji was away, Ms Scuglia looked to her to help out and that this continued after Ms Tleyji’s return.

29 According to Ms Acquaro, the responsibility for banking and BSP returns was shared among staff on a roster system. She thought a new roster had “probably not” been posted after Ms Tleyji’s return and that the division of duties remained largely unchanged.

30 Ms Scuglia’s evidence was that she did not allocate Ms Tleyji any specific tasks on her return “…she’s familiar with the office, and was able to get back in … like everyone else”. She agreed Ms Tleyji had little work on her return and said “it’s one of those things where you fall into the line of work, and it would come eventually. I knew it would happen…she was a good consultant”. She said she didn’t give Ms Tleyji her former duties back “probably more for convenience sake…I think it was more in the right thing to allow her to slip back into the role as a consultant.” She denied giving Ms Tleyji a disproportionate number of menial jobs.

31 Ms Scuglia’s evidence was that on Ms Tleyji’s return, Ms Acquaro kept responsibility for running the BSP reports and that she alone had responsibility for the Commission and Profitability reports. She denied that Ms Tleyji had ever had any involvement with the latter.

32 Ms Scuglia conceded that Ms Tleyji had raised the allocation of work with her “in a roundabout way”. Ms Tleyji said she did not raise the issue until 10 June.

33 Signing cheques Before she took leave, Ms Tleyji had been a co-signatory on cheques written by the Eastwood office but on her return was not. TravelSpirit’s evidence is that while Ms Tleyji was on maternity leave, new owners took over the business and put in place a rule that only one person in each office was authorised to sign cheques. In evidence Ms Telyji conceded that Ms Scuglia was the cheque signatory in the Eastwood office on her return.

Findings and Conclusions

34 A detriment On her return, Ms Tleyji had little work to do and the scope of her duties had been narrowed. The first issue to be addressed is whether this change could, as asserted, constitute a detriment for the purpose of s 49D(2)(d) and s 25(2)(c).

35 The meaning of “detriment” was considered in Bonella v Wollongong City Council [2001] NSWADT 194 at [50]: “…detriment” should be given its common meaning of “loss, damage or injury”. It has also been held in those cases that "the detriment suffered by the complainant must be real and not trivial" and "whether something constitutes a detriment must be determined objectively and not subjectively".

36 In our view, the failure of TravelSpirit, through Ms Scuglia, to return Ms Tleyji to the full range of her pre-leave duties could constitute a ‘detriment’.

37 In reaching that conclusion we have taken into account the submission put for TravelSpirit that the period in issue is only about five weeks. This they asserted is not a case of an employee returning from leave whose duties had not been reinstated after a significant period. While the period in dispute is relatively short, nevertheless it seems to us that failing to take any steps to return Ms Tleyji to the scope of her pre-leave duties constituted a detriment. It is relevant that there is no evidence that Ms Scuglia had intended to rectify the problem at some later date.

38 Less favourable treatment and causation It is uncontroversial that taking instructions from clients and the attendant follow up work of making bookings and organising travel arrangements occupied the bulk of a senior travel consultant’s day. Whether Ms Tleyji had any entitlement to the handful of still active files she handed over to Ms Scuglia before going on leave was a live issue in these proceedings and in our view, something of a distraction. The main cause of Ms Tleyji under-employment was that she had been absent for an extended period and had not accumulated new work not because a handful of ‘old’ files were not returned.

39 The only significant factual issue in dispute is whether Ms Tleyji had prepared Commission and Profitability reports. Even if she had not, the evidence makes clear that before she went on leave report-writing and banking were part of her duties but on her return they were not.

40 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, the Appeal Panel said that in a case of direct discrimination, differential treatment should be determined before causation as “if there is no relevant differential treatment it is unnecessary to consider the issue of causation” at [45]. The decisions of Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] and Edwards v Bourke Shire Council [2005] NSWADT 9 at [11] questioned the practical difficulties of adopting that approach where the assessment of differential treatment relies on a hypothetical comparator. In this case there is no evidence of an actual comparator and therefore, for the reasons advanced in Dutt Martin and Edwards, we will first consider causation.

41 As Ms Scuglia conceded, she did not see it as her role to keep Ms Tleyji in the ‘information loop’ while she was away on leave. Nor did she see it as part of her brief to take any steps to return her to pre-leave duties.

42 It is possible that one of the reasons Ms Scuglia failed to reinstate Ms Tleyji’s pre-leave duties was that she considered she was no longer up to the more complex work of report writing and banking. The evidence indicates that Ms Scuglia thought Ms Tleyji might not return from maternity leave and if she did, she might be less reliable. For example in an undated report (Exhibit R 5, Annexure C) Ms Scuglia noted, “[Ms Tleyji] had shown herself to be unreliable in her attendance at work due to her first responsibilities” [emphasis added]. In evidence, Ms Scuglia said she understood that “[Ms Tleyji’s] number one priority was to her son, as the running of the business was to me”.

43 The evidence on this point is finely balanced. It is possible that one of the reasons Ms Scuglia failed to reallocate tasks to Ms Tleyji was because she thought she was no longer up to the job on account of her responsibilities to her infant child. Equally, it is possible that Ms Scuglia simply lacked the skills and insight to recognise that if Ms Tleyji was to be returned to her pre-leave duties, she as manager would have to take steps to ensure this happened. Ms Scuglia appeared to have a narrow view of her role as manager. She apparently did not see it as part of her role to examine whether productivity and/or staff morale might be improved if tasks were allocated on a different basis.

44 While there is some evidence to support a finding that Ms Scuglia had concerns about Ms Tleyji’s commitment to her job on her return, the more difficult issue is whether in comparable circumstances a person without family responsibilities would have been treated ‘more favourably’.

45 The comparator advanced for Ms Tleyji in respect to the complaint on the grounds of carer’s responsibilities is a senior travel consultant without carer’s responsibilities. In order to place this hypothetical comparator in the ‘same or materially similar’ circumstances it is necessary to add “who had returned from leave after an extended period”. The question therefore to be posed is whether a senior travel consultant without carer’s responsibilities returning from extended leave would have been treated more favourably. As we have stated, we have real doubts that Ms Scuglia had either the skills or the insight necessary to change the division of duties. We are not satisfied that she would have been propelled into action if the returning member of staff did not have family responsibilities.

46 Nor could we be satisfied that a male travel consultant in comparable circumstances would have been treated differently.

47 Accordingly, this part of the complaint of discrimination on the grounds of carer’s responsibilities/sex is dismissed.

Exclusion from conferences/ seminars

48 Ms Tleyji asserts that on her return from leave she was not invited to various conference and training seminars. From the evidence before us, we can identify only one training event Ms Tleyji was not invited to after returning from leave - the annual state conference hosted by Harvey World Travel in June 2004. All staff in the Eastwood office were invited to attend except Ms Tleyji. Ms Scuglia said Ms Tleyji was not invited because she was on maternity leave when registration closed and in addition the training budget was only sufficient for three people.

49 Findings and conclusions Ms Scuglia and presumably TravelSpirit’s management saw the conference as sufficiently important to pay for staff to attend. Ms Scuglia confirmed that it provided staff with an opportunity to be briefed on developments in the industry. Not being afforded this opportunity could, in our view, constitute a detriment.

50 Less favourable treatment To make a meaningful comparison between the treatment afforded Ms Tleyji and that which would have been afforded to her nominated comparator, it is necessary to add to the comparator the qualification “on leave at the time registration closed”.

51 On the evidence before us we could not be satisfied that Ms Scuglia would have treated a senior travel consultant without family responsibilities/male travel consultant, who had been away on extended leave any differently.

52 Accordingly, this part of the complaint of discrimination on the grounds of carer’s responsibilities/sex is dismissed.

Claim two: refusal to agree to early return to work

53 Ms Tleyji asserts that TravelSpirit’s refusal not to give her part-time work in 2003 constitutes unlawful discrimination for the purpose of s 49V(2) and s 25(2) of the ADT Act.

54 In September 2003, Ms Tleyji saw advertised on TravelSpirit’s website a position for a part-time senior travel consultant to be based in the Eastwood office and asked Ms Scuglia could she be considered for it. Ms Scuglia said there was no part-time work available at that time and told her to put her request in writing. In a letter, dated 16 October 2003, to TravelSpirit’s General Manager, Peter de Maria, Ms Tleyji requested part-time work before her scheduled return.

55 In a letter dated 22 October 2003, Mr de Maria advised Ms Tleyji that her request for part-time work had been given “careful consideration” but was refused. He gave no reasons for that decision. Both Ms Olivieri and Ms Scuglia claim Mr de Maria did not consult them about the decision. Ms Olivieri claims she only found out about the request after the decision had been made.

56 Ms Scuglia claims she had “Head Office” approval to place the intranet advertisement. Ms Olivieri disputes this and claims that when it was brought to her attention she immediately instructed Ms Scuglia to remove it. She contends that at that time a staff freeze had been imposed because of a general downturn in business triggered by world events.

57 While Ms Tleyji was on leave, Ms Scuglia proposed to Ms Olivieri various options to cover Ms Tleyji’s absence including employing additional staff. Ms Olivieri did not agree to that request. Throughout the period Ms Tleyji was on leave her work was covered by increasing the hours of other staff and by Ms Scuglia forfeiting some RDOs.

Findings and conclusions

58 TravelSpirit is correct in arguing that it was under no obligation to offer Ms Tleyji part-time work before her scheduled return from maternity leave. Nevertheless, the decision to reject Ms Tleyji’s request for part-time work is capable of constituting a detriment if the necessary elements of the test of ‘direct discrimination’ are made out.

59 It is plain that Ms Scuglia did not want Ms Tleyji back before her scheduled return despite agitating for additional staff at that very time. It follows that Ms Scuglia might have held an unfavourable view about Ms Tleyji. We know that at that time she thought there was a real possibility that Ms Tleyji might not return at all and , if she did, that work would not be her “Number One” priority.

60 If the evidence of Ms Olivieri and Ms Scuglia is to be accepted Mr De Maria made the decision not to allow Ms Tleyji to return early without consulting her direct supervisor or Ms Olivieri, the person responsible for overseeing the Eastwood office. This seems to us implausible. It is possible that Ms Scuglia was not entirely candid with the Tribunal and that she had spoken to Mr de Maria and recommended that he not support Ms Tleyji’s request. The evidence shows that she had gone to him without Ms Olivieri’s knowledge on other matters. (In early 2004 Ms Scuglia asked Ms Olivieri if Ms Acquaro’s hours could be increased and was told no. Ms Scuglia then went to Mr de Maria who over-ruled Ms Olivieri.)

61 There is no direct evidence about why Mr de Maria refused Ms Tleyji’s request as TravelSpirit elected not to call him to give evidence. We accept Ms Olivieri’s evidence that a staff freeze was in place. However, without any evidence from Mr de Maria we simply could not be satisfied one way or another that this was the real reason for the decision.

62 TravelSpirit’s explanation for the offending decision, if accepted, indicates that neither Ms Tleyji’s gender nor carer’s responsibilities played any part in its decision. It was open to Counsel for Ms Tleyji to submit that an inference should be drawn from TravelSpirit’s failure to call Mr de Maria that his testimony would not assist its case. She did not do so (See Jones v Dunkel (1959) 101CLR 298). Even if she had, the Tribunal would not necessarily have made that finding. “The rule [in Jones v Dunkel] cannot be employed to fill gaps in the evidence, or turn conjecture and suspicion into evidence.” (Byrne, D QC & Heydon JD, Cross on Evidence, Butterworths, Sydney, 1986, p36).

63 While the evidence raises some concerns, we could not be satisfied that gender or carer’s responsibilities played a part in TravelSpirit’s decision to refuse Ms Tleyji work before her scheduled return. Given this finding, it is unnecessary for us to consider whether Ms Tleyji was subjected to less favourable treatment.

64 Accordingly, this part of the complaints of discrimination on the ground of sex and carer’s responsibility is dismissed.

Claim 3: Refusal to agree to part time work

65 Shortly after returning from maternity leave, Ms Tleyji again requested part-time work. Ms Tleyji asserts that TravelSpirit’s refusal constituted unlawful discrimination on the grounds of carer’s responsibilities, (s 49V(2) of the AD Act and sex, (s 25(2) of the AD Act). Her complaint is cast as “indirect discrimination”. We will first consider whether this alleged refusal constitutes discrimination on the grounds of carer’s responsibilities.

66 To succeed in her complaint, Ms Tleyji must establish that:

(a) TravelSpirit imposed a “requirement or condition”; and

(b) she was unable to comply with that “requirement or condition”; and

(c) a substantially higher proportion of persons without responsibilities as a carer [for example] comply or are able to comply with that “requirement or condition”; and

(d) the requirement or condition is not reasonable having regard to the circumstances of the case.

67 Background Four days after her return to work, Ms Tleyji wrote to Ms Scuglia and requested permission to work three days a week; Monday to Friday only, and, Saturday but only if paid and not given time in lieu.

68 On 1 June Ms Tleyji, Ms Olivieri and Ms Scuglia met to discuss that request. At that meeting Ms Scuglia indicated that as two of the four staff at the Eastwood office were already part time a third part-timer was not feasible given the nature of TravelSpirit’s business. Ms Olivieri offered Ms Tlejyi two part-time positions in TravelSpirit’s city office. Ms Tleyji said that she would get back to them.

69 In a letter to Ms Olivieri dated 7 June 2004, Ms Tleyji commented that the two positions “were not the same position which I hold currently with your company in Eastwood and would require me to travel a much longer distance from home to the city where I understand these positions are available”. She wrote that as the dispute could not be resolved she had decided to refer it to the Anti-Discrimination Board.

70 In these proceedings, Ms Olivieri explained that the positions offered to Ms Tleyji were in TravelSpirit’s wholesale section: one was a ‘reservations consultant’, the other a ‘reservation support consultant’. The former involved taking enquiries from travel agents about TravelSpirit’s products and the latter involved following up overseas suppliers and processing bookings for accommodation, etc. Neither involved direct dealings with clients. Ms Olivieri said she was not exactly sure what the salaries were for these positions but agreed with the proposition that the rates paid in TravelSpirit’s wholesale section were generally lower than those paid in its retail section. She disagreed with the proposition that the positions were less skilled than that of senior travel consultant (retail).

71 Ms Olivieri said that at that time the two positions were the only part-time positions in the company which, at that time, employed about 120 people.

72 She agreed that at the time the request was considered, she had not asked either of the two part-timers whether they would be interested in working full time. Nor had she asked Ms Tleyji whether she might be prepared to work more hours or job share. In her view, Ms Tleyji had a fixed view and was not prepared to negotiate.

73 Detriment This allegation in our view is capable of falling within s 49V(2)(a) (terms and conditions of employment) and s 49V(2)(b) (denial of a benefit) and s 49V(2)(d) (a detriment).

74 The Requirement The offending requirement is identified as the requirement to work full time. TravelSpirit denies that it required Ms Tleyji to work full time and points to its offers of alternative employment.

75 While those offers might be relevant to the determination of reasonableness we do not accept TravelSpirit’s argument that it had not required Ms Tleyji to work full time. The evidence is clear that if she was to remain in her substantive position as Senior Travel Consultant in the Eastwood office she had no option but to work full time.

76 Unable to comply Ms Tleyji’s evidence that she was unable to meet her responsibilities as a carer and work full time is uncontradicted and accepted by us.

77 Substantially Higher Proportion Ms Tleyji bears the onus of establishing that a substantially higher proportion of persons who do not have carer’s responsibilities comply, or are able to comply, with the requirement to work full time as compared to those who do not have carer’s responsibilities. This is a question of fact: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at pp 178-179; Amery & Ors v State of New South Wales (Director- General NSW Department of Education and Training) [2004] NSWCA 404 at [136].

78 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 provides at [77] useful guidance on the steps to be undertaken in determining this issue:

First, identify the pool or base group.

Second, identify the members within that group who do not have carer’s responsibilities and can comply with the requirement.

Third, identify the members of the base group who have carer’s responsibilities and who can comply with the requirement.

Finally, compare the proportion of employees without carer’s responsibilities who can comply with the requirement with the proportion of employees with carer’s responsibilities who can comply.

79 Base Group The identification of the base group was an issue in these proceedings.

80 This matter was listed for hearing on 9 May 2005 and, at the request of Ms Tleyji, an adjournment granted. On that occasion the Tribunal drew to the attention of Ms Tleyji’s representatives that the base group had not been identified and directed that this be remedied.

81 When proceedings resumed on 16 May those directions had not been complied with. Consequently further directions were made requiring Ms Tleyji to file and serve particulars of the nominated base group by 11 July. On 21 July TravelSpirit wrote to the solicitors for Ms Tleyji reminding them of these directions. By letter dated 25 July 2005 Ms Tleyji’s solicitors advised that the base group was: “Travel consultants and senior travel consultants working for the TravelSpirit Group” and requested TravelSpirit’s representatives to advise if they agreed. TravelSpirit’s solicitors wrote back advising that it fell to Ms Tleyji, not the Respondent, to formulate the group.

82 Shortly after this, Ms Tleyji’s solicitors wrote to TravelSpirit and asked for particulars on the nominated base group.

83 Three days before the next hearing day, evidence going to the composition of the pool was filed for Mrs Telyji. That material was not admitted because it was out of time.

84 Composition of Base group TravelSpirit provided the following information in answer to Ms Tleyji’s request for particulars:

As at 8 May 2004 TravelSpirit employed:

One male and three female senior consultants.

The male senior consultant did not have family responsibilities. He worked full-time.

Of the three female senior consultants one had family responsibilities.

Of the female senior consultants one worked part-time.

85 Counsel for Mrs Tleyji challenged these figures and pointed out that Ms Acquaro described herself in these procceedings as a ‘senior travel consultant’ but was omitted from TravelSpirit’s list of senior travel consultants. Ms Tan, for TravelSpirit, advised that while Ms Acquaro might have described herself in that way, TravelSpirit’s administrative systems classified her as a ‘travel consultant’.

86 The information supplied by TravelSpirit was challenged by Ms Tibby in closing submissions. It was not possible at that late stage to test the information supplied. Given this there is no option in our view but to accept the particulars provided. Applying that information to the issues that fall to be determined:

The base group is made up of four senior consultants.

Three members of that group do not have carer’s responsibilities. Two can comply with the condition; one cannot.

Ms Tleyji was the sole member of this group who had carer’s responsibilities. She could not comply with the condition.

The proportion of senior travel consultants without carer’s responsibilities who can comply with the condition is 2/3 or 66%. The proportion of employees with carer’s responsibilities who can comply with the condition is 0/1 or NIL.

87 Compliance rates A claim of indirect discrimination must fail unless it can be established that a “substantially higher proportion” of persons within the base group who do not have the relevant characteristic (in this case, carer’s responsibilities) comply or are able to comply with the offending requirement as compared to the proportion of persons who do have to have that characteristic. In Bonella & Ors v Wollongong City Council, the Tribunal analysed the difficulties caused by a mere statistical approach in determining whether a difference in compliance rates is “substantial”, especially where the nominated pool is small in size. It said (at [94]):

The leading cases have not laid down any tests for determining when a difference in gender compliance rates with a challenged requirement or condition is of such magnitude that it becomes reasonable to conclude that a substantially higher proportion of persons of one sex, as compared to the other, have complied. It is a question of fact in each case; sometimes the numbers will be so great that a difference in one or two percentage points may be sufficient, whilst in other cases the numbers will be so small that it will be impossible to determine whether any statistical disparity may be the result of nothing more than accident or chance.

88 In our view, the reasoning adopted in Bonella applies equally in this case. A pool of four persons and a disparity of 66% is an unreliable indicator of whether the characteristic of carer’s responsibilities bears any significance to compliance with the requirement to work full time. (see Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at 180.)

89 Notwithstanding these problems in our view we are entitled to take judicial notice of the fact that a substantially higher proportion of persons without responsibilities for infant children can or do comply with the requirement to work full time. It is, we think, a truth universally acknowledged that people with responsibilities for the care of a infant child find it difficult to balance their responsibilities to care for their child and work, and within the Australian workforce a lesser proportion of those with such responsibilities are able to work full time than those who do not. That is a fact so well publicised in the mass media and so widely known that, in our view, it can be regarded for evidentiary purposes as a matter of common knowledge.

90 Reasonableness Whether in the context of indirect discrimination the imposition of a condition is “not reasonable” has been considered by the High Court in two cases: Banovic and Waters v Public Transport Corporation (1991) 173 CLR 349; by the Federal Court in Commonwealth Bank v Human Rights and Equal Opportunity Commission (‘Finance Sector Union Case’) (1997) 150 ALR 1; Styles v The Secretary of the Department of Foreign Affairs and Trade (1989) 23 FCR 251, Commonwealth v HREOC (1995) 63 FCR 74, and others.

91 In this Tribunal this issue has been considered by Appeal Panels in The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16, Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26, Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 and, in the context of carers’ responsibilities in Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1.

92 In Amery & Ors. v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 the Court of Appeal confirmed that the applicant bears the onus of establishing that the offending requirement is “not reasonable” and that the motive or reason for the discriminatory conduct is irrelevant. Their Honours cited with approval the approach to determining whether a requirement is “not reasonable” adopted by the Full Federal Court in Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 FCR 251.

"...the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience...The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."

93 It was argued for Ms Tleyji that TravelSpirit gave little real consideration to her request for part-time work and that the decision had already been made when the parties met on 1 June. It is asserted that neither Ms Scuglia nor Ms Olivieri gave any real thought to whether a less discriminatory option was available and both came to the meeting with fixed and inflexible views. Ms Tleyji was not invited to propose ways that the part time option could have been achieved. The alternative positions offered were, it is asserted, more junior than the position of ‘senior travel consultant ’not as well paid and did not offer promotional opportunities.

94 TravelSpirit argued that its decision makers had made reasonable attempts to accommodate Ms Tleyji’s request and it was she, not they, who were unreasonable. It points to the precise terms demanded by Ms Tleyji: three days per week; Monday to Friday only and Saturday but only if paid and not given time in lieu.

95 TravelSpirit contends that the facts of this case can be distinguished from those in Reddy v. International Cargo Express [2004] NSWADT 218 and Mayer v ANTSO [2003] FMA 209. Here Ms Tleyji was not forced to choose between work and her carer’s responsibilities. Instead, she was offered alternative employment. While not identical to Ms Tleyji’s position in the Eastwood office nevertheless the positions offered, it submitted, were broadly comparable and, given the small size of TravelSpirit’s business, it was simply not possible to find an identical match. The city location of the positions offered meant Ms Tleyji would have to travel further but that, in all the circumstances, could not be seen as unreasonable.

96 In addition, it submitted that the viability of the Eastwood office might have been compromised if it was left with only one full-time member of staff, Ms Scuglia. It was necessary, it was argued, to have at least two full-time staff to ensure continuity and consistency in practice. In particular, it was necessary to have a senior full-time person available to “back fill” the manager when she was on leave.

97 TravelSpirit also contends that it is relevant that Ms Tleyji was fully briefed on all of the reasons for its decision.

98 Findings and Conclusions Ms Tleyji bears the onus of establishing that the offending requirement to work full-time was not reasonable in all the circumstances.

99 As TravelSpirit submitted the small size of its Eastwood office meant that it was difficult to cover staff leave and provide continuity to clients if it was left with only one full-time member of staff. Ms Oliveria was properly concerned that if the office was staffed indefinitely on that basis, relationship with clients might be jeopardised and, ultimately affect, the company’s profitability. In the competitive service industry in which TravelSpirit operated these can only be seen as legitimate and proper concerns. TravelSpirit’s managers were also concerned, not unreasonably, that a consequence of running the Eastwood office with three part timers meant that precious management time might be diverted to organising rosters and negotiating with staff to ensure adequate staffing levels were in place at all times.

100 The requirement that Ms Tleyji work full-time appears in our view to have been "appropriate and adapted”.

101 An assessment of reasonableness requires the concerns of the organisation to be given proper and full consideration. But as Justice Brennan made clear in Waters at p.378, whether a requirement is "appropriate and adapted” is but one of the factors that needs to be taken into account:

"But even where the imposition of the particular requirement or condition is appropriate and adapted to the performance of the relevant activity or the completion of the relevant transaction, it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition."

102 As TravelSpirit submitted this is not a case of an employer who summarily dismissed an employee’s request for part-time work. Ms Tleyji was given a choice. Nevertheless the choice was to accept a different position to that which she had held and enjoyed for close to five years, and, probably, not as well paid.

103 While TravelSpirit had gone to some lengths to accommodate Ms Tleyji’s request the evidence indicates that it did not give any real consideration to whether it was possible to accommodate Ms Tleyji’s request and allow her to retain her existing position. It did not for example canvass whether Ms Willis or Ms Acquaro would be willing to work full-time, even for a short period. Nor was any thought given to whether the operational concerns held by Ms Oliveria and Ms Scuglia might be able to be addressed if a job share arrangement was introduced. Nor was any consideration given to trialling Ms Tleyji’s proposal to test if, as feared, business might be compromised if the office was left with only one full timer. (While the office did have some experience with working under only one full timer, i.e. while Ms Tlejyi was on leave, this could not reasonably be seen as a trial as throughout that period total staff hours had also been reduced. )

104 Nor apparently was any consideration given to structuring an arrangement which would have allowed Ms Tleyji to return to her old job after a period in the company’s wholesale division.

105 In considering whether the activity could be performed ... without imposing a requirement or condition that is discriminatory it is not necessary for the Tribunal to satisfy itself that no stone had been left unturned by a respondent in their evaluation of alternatives. Reasonable efforts however need to be shown.

106 In our opinion, while TravelSpirit gave some consideration to allowing Ms Tleyji to work part-time, it failed to give full and proper consideration to whether she could perform her role as a Senior Travel Consultant on a part-time basis either under the model she put forward or some variation thereof.

107 For all these reasons we conclude that the requirement was not reasonable in all the circumstances.

108 Summary For the reasons as stated, we are satisfied that TravelSpirit unlawfully discriminated against Ms Tleyji on the ground of carer’s responsibility contrary to section 49V(2)(d) of the AD Act.

109 Given our findings above, we do not consider it necessary to determine Ms Tlejyi's alternative claim that TravelSpirit's conduct contravenes s 25(2).

Claim four: Accrual of leave

110 Shortly after returning from maternity leave, Mrs Tleyji discovered that her sick leave had been exhausted and she raised this with her employer. TravelSpirit took the view that under the terms of the staff agreement, sick leave did not accrue throughout periods of unpaid leave, including maternity leave. Mrs Tleyji’s claims that this ruling, or more correctly the implementation of that ruling, constitutes unlawful discrimination.

111 Counsel for Mrs Tleyji contended that the offending provision contravenes the AD Act. She conceded that the claim could not be put as one of direct or indirect discrimination and was “put no higher” than a factor to be taken into account in determining damages.

112 We are at a loss to see how this claim could be said to be caught by the provisions of the AD Act. As conceded by Counsel for Ms Tleyji, this allegation cannot be cast as unlawful discrimination. We fail therefore to see how it could be taken into account in an award of damages. The Tribunal’s powers to make orders under s 108 are only enlivened when a complaint is substantiated in whole or in part.

113 In our view, this claim is misconceived and accordingly it is dismissed.

Complaint of Race Discrimination

114 Ms Tleyji claims that on 10 June 2004 she was directed by Ms Scuglia not to speak Arabic at work and that this constitutes race discrimination under s 8(2) of the AD Act. She relies on the so-called “characteristic extension” found in s 7(2) which extends the reach of direct race discrimination to treatment on the ground of a characteristic “that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race”. Ms Tleyji asserts that the speaking of Arabic is a characteristic “that appertains to” her race, namely, Lebanese.

115 To succeed in this complaint Ms Tleyji must establish:

First, that she was “banned” from speaking in Arabic on the phone at work.

Second, if so, that such conduct is capable of falling within the provisions s 8(2) of the AD Act.

Third, that speaking in the Arabic language is a characteristic “that appertains generally to persons of the Lebanese race or a characteristic that is generally imputed to persons of that race”.

Fourth, that TravelSpirit treated her less favourably than they treated or would have treated a person not of her race or the nominated characteristic, in the same circumstances, or in circumstances, not materially different.

Fifth, that one of the grounds for that treatment was Ms Tleyji’s race or a characteristic of her race.

116 Evidence The background to this alleged directive is as follows: On June 10 Ms Tleyji took a call from her sister and spoke in Arabic. The only other people in the office were Ms Acquaro and Ms Scuglia. Ms Tleyji took the call at her desk which was situated in a small open-plan office.

117 In the course of that call, Ms Tleyji overheard one of her colleagues say “how rude”. She thought it was Ms Acquaro. Ms Acquaro admits saying those words, as did Ms Scuglia.

118 It is not in issue that following this call Ms Scuglia told Ms Tleyji she thought it was rude to take calls in Lebanese (sic) and told her in the future to take those calls in the upstairs staffroom. The only significant factual issue in dispute is whether Ms Scuglia directed or requested Ms Tleyji to do do.

119 Ms Tleyji claims she was directed to take these calls upstairs. That is consistent with Ms Acquaro’s account of what Ms Scuglia had said:

"I'm not telling you not to speak Lebanese, just take it upstairs. If you have to have your personal call in Lebanese, take it upstairs."

120 In contrast, Ms Scuglia claims that all she did was issue a request. Her evidence was that she used these words:

"I would appreciate it if you would speak in English and not in Lebanese. It makes myself and the staff feel very uncomfortable. I would appreciate it, if you need to speak in Lebanese, by all means take your calls upstairs, where they are personal calls for yourself so that no-one else can hear, and that the staff and myself will not feel uncomfortable with that. I cannot at any stage prohibit you from taking calls and speaking in Lebanese but I would ask common courtesy from you for the rest of the office, if you could please speak in Lebanese upstairs only."

121 Ms Scuglia claimed that on return from leave, Ms Tleyji made about five personal phones calls a day. This is denied. Ms Tleyji claims that she made “at most” two calls per day. According to Ms Olivieri, on a number of occasions before this altercation, Ms Scuglia raised Ms Tleyji’s phone calls with her.

122 According to Ms Olivieri, she told Ms Scuglia “we cannot stop her speaking in Lebanese”.

123 On 21 June, Ms Olivieri emailed the staff of Eastwood office and advised that “private phone calls are to be brief and kept to an absolute minimum”.

Findings and conclusions

124 Following the offending phone call, Ms Scuglia told Ms Tleyji that if she needed to take calls in Arabic she could no longer do so from her desk. While as claimed, Ms Scuglia might have prefaced that instruction with “I cannot prohibit you…” that is in effect what she did. This was more than a gentle suggestion. Ms Scuglia made it abundantly clear that she would no longer tolerate Ms Tleyji’s practice of talking on the phone in Arabic at her desk. While Ms Scuglia did not ban Ms Tleyji from speaking Arabic at work she did stop her from doing so from her desk.

125 There is conflicting evidence about the frequency of Ms Tleyji’s personal calls and her phone manner. Ms Scuglia described her manner as loud and raucous on occasion. This is denied. It is noteworthy that the offending phone call was described by Ms Acquaro as not “particularly unusual…it was light hearted… a normal audible voice”. It may well have been that Ms Scuglia held concerns about the frequency of Ms Tleyji’s personal calls and the volume of her voice but this was not mentioned in the 10 June directive.

126 A Detriment Before 10 June Ms Tleyji was able to take calls from her desk in the language of her choice. Ms Scuglia’s directive meant that she was no longer free to do so. From that time on if she wanted to speak in Arabic she was required to do so out of earshot of the office.

127 TravelSpirit contends that this does not constitute a detriment, as Ms Tleyji was still free to take personal calls at work. While this may be true, from 10 June she was no longer able to take or make personal calls in Arabic from her desk, a freedom she had been allowed up to that time. This in our view constitutes a detriment and is caught by s 8(2)(c) of the AD Act. While strictly speaking it is not necessary for us to determine, we think that the conduct could also come within ss 8(2)(a) and 8(2)(b).

128 A characteristic We find that that speaking in the Arabic language is a characteristic that appertains generally to persons of the Lebanese race.

129 Differential treatment Ms Tleyji asserts that the offending directive constitutes less favourable treatment and nominates as comparators other staff employed in the Eastwood office who did not speak Lebanese [sic]. The comparable circumstances in our view would be a staff member taking calls in a language other than Arabic at their desk. There is no evidence that Ms Scuglia barred other staff taking calls at their desk if they spoke English or indeed any other language. Nor did she stop Ms Tleyji taking personal calls in English from her desk.

130 In our view this directive constitutes less favourable treatment.

131 Causation The final issue to be determined is whether one of the reasons for this unfavourable treatment was a characteristic of Ms Tleyji’s race that is the speaking of Arabic.

132 TravelSpirit asserts that the sole reason for the request was because staff found it intimidating when Ms Tleyji spoke in Arabic. It is asserted that her manner gave them the impression that she was talking about them in a negative way. They argue that this had nothing to do with her race.

133 The evidence reveals there was more than one reason Ms Scuglia acted as she did. No doubt the directive was linked to her deteriorating relationship with Ms Tleyji. The part-time work issue had recently come to a head and she was unhappy with Ms Tleyji’s attendance record. It had become an explosive environment

134 The directive was also tied up with what Ms Scuglia’s saw as Ms Tleyji’s abuse of phone privileges. It may have been that Ms Scuglia might have been more tolerant of the language Ms Tleyji used had her personal calls been less frequent. Had the directive simply been that Ms Tleyji limit her personal calls, this claim would fail. But they are not the facts before us. It is noteworthy that Ms Scuglia took no steps to stop Ms Tleyji taking calls in English from her desk which, on her account, she did all too frequently. The directive was simple: if Ms Tleyji wished to take calls in Arabic she was required to do so out of earshot of the office.

135 To succeed in her claim Ms Tleyji is not required to establish that Ms Scuglia harboured ill feelings towards her because she was Lebanese. Nevertheless, the inescapable conclusion is that one of the reasons Ms Scuglia acted as she did was because of a characteristic of Ms Tleyji’s race, that is, the speaking of Arabic.

136 We find the complaint of discrimination on the ground of race substantiated.

137 Authorisation In the interests of completeness we note that TravelSpirit did not submit that it was not liable for the conduct of Ms Scuglia as a consequence of the operation of s 53 of the AD Act. (See also paragraph [3] of Summary of Complaint prepared by the Tribunal and issued to the parties following the 22 September 2004 case conference).

Relief

138 Ms Tleyji seeks an order for damages under s 108 of the AD Act.

139 There is no claim for economic loss nor, as we understand it, a claim for non-economic loss for the complaints of discrimination on the grounds of sex and carer’s responsibility. The sole issue therefore to be determined is what, if anything, ought be ordered for non economic loss on account of the complaint of race discrimination.

140 Ms Tleyji’s evidence was that she was so distressed by the 10 June phone incident that she left work never to return. She saw her local GP eleven days after the incident complaining of stress and multiple physical symptoms. She was referred to counselling and prescribed mild sedatives to assist her sleep.

141 It is always difficult to determine the appropriate level of damages for non-economic loss in a case of unlawful discrimination and this case is no exception. However, an applicant should not to be deprived of damages on that account (see Wilcox J in Hall v Sheiban (1985) ALR 503 at 543).

142 In the circumstances of this case, we believe having regard to all the circumstances that an amount of $5000 is reasonable.

Orders

1. That part of the complaint of discrimination on the grounds of ‘responsibilities as a carer’ that relates to the Respondent’s refusal to provide the Applicant part-time work in 2004 is substantiated and the balance of the complaint is dismissed.

2. The complaint of discrimination on the grounds of race is substantiated.

3. Respondent to pay the Applicant within 21 days damages in the sum of $5,000.