Trapman v Sydney Water Corporation & Ors
[2011] FMCA 398
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAPMAN v SYDNEY WATER CORPORATION & ORS | [2011] FMCA 398 |
| HUMAN RIGHTS – Unlawful discrimination – Racial discrimination – direct discrimination – applicant an Aboriginal – whether discrimination against applicant by telling racist joke in the workplace – remarks may constitute discrimination – evidence – standard of proof – damages – general damages. |
| Evidence Act 1995 (Cth), ss.66A, 140 Human Rights and Equal Opportunity Commission Act 1986(Cth), ss.46PH, 46PO Racial Discrimination Act 1975 (Cth), ss.9, 18E |
| Bennett & Anor v Everitt & Anor (1988) EOC 92-244 Briginshaw v Briginshaw (1938) 60 CLR 336 Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 12 FCR 352 Hall v Sheiban (1989) 20 FCR 217 Qantas Airways Ltd v Gama [2008] FCAFC 69: (2008) 167 FCR 537 Trapman v Sydney Corporation & Ors [2009] FMCA 942 Waters v Public Transport Corporation (1991) 173 CLR 349 |
| Applicant: | WILLIAM TRAPMAN |
| First Respondent: | SYDNEY WATER CORPORATION |
| Second Respondent: | MARK DAVIES |
| Third Respondent: | MARK TUNKS |
| Fourth Respondent: | JOHN KOVAC |
| Fifth Respondent: | LOGAN MAHADEVA |
| File Number: | SYG 1930 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15-18 September, 1-3 December 2009, 12 March, 7 May 2010 |
| Date of Last Submission: | 7 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Goodchild |
| Solicitors for the Applicant: | Friend & Co |
| Counsel for the First Respondent: | Mr Shariff |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Mr Shariff |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The First Respondent and the Second Respondent are to pay to the Applicant $5,000.00 by way of compensation for unlawful discrimination.
The Application is dismissed as against the Third, Fourth and Fifth Respondents.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1930 of 2008
| WILLIAM TRAPMAN |
Applicant
And
| SYDNEY WATER CORPORATION |
First Respondent
| MARK DAVIES |
Second Respondent
| MARK TUNKS |
Third Respondent
| JOHN KOVAC |
Fourth Respondent
| LOGAN MAHADEVA |
Fifth Respondent
REASONS FOR JUDGMENT
Application
This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 claiming that the Applicant was the subject of a number of instances of discrimination on the basis of his Aboriginal race. The Second to Fifth Respondents are all employed by Sydney Water Corporation, the First Respondent.
There are eight separate claims, said to have arisen from the Applicant’s two periods of employment with Sydney Water Corporation from early 2006 to 30th May 2007.
Background
The Applicant was employed by Clexan Peak Personnel Pty Limited, a labour hire company that provided labour to Sydney Water Corporation. His two periods of employment were in 2006 and 2007.
On 29th June 2007 the Applicant made complaints of racial discrimination to the Human Rights and Equal Opportunity Commission (HREOC) against Clexan Peak Personnel Pty Ltd and the five Respondents to this application.
On 27th June 2008 HREOC terminated the complaint. The delegate of the president of HREOC was satisfied that there was no reasonable prospect of the complaint being settled by conciliation and terminated the complaint under s.46PH(1) of the Human Rights and Equal Opportunity Commission Act.
The Applicant then commenced proceedings in this Court against Clexan Peak personnel and the other five Respondents. After mediation before a Registrar, the Applicant reached agreement with Clexan Peak Personnel and discontinued his application against that Respondent.
The application proceeded against the other five Respondents. On
16th September 2009, after an interlocutory hearing as to jurisdiction, the Court held that it had jurisdiction to deal with eight matters claimed by the Applicant. The Court heard evidence in respect of these claims in September and December 2009.
The Applicant’s Claims
The Applicant’s claims are conveniently set out in a written submission by his solicitor, Mr Friend, and filed on 9th February 2010.
The First Claim
In early 2006 at a worksite in Telegraph road, Pymble, the Applicant’s supervisor, the Second Respondent, Mark Davies, received an SMS text message on his mobile telephone. He remarked to the Applicant, in the presence of fellow employees:
“Aboriginals don’t use soap…I’ll tell you all an Aboriginal joke”
The SMS message consisted of a racially offensive joke relating to Aboriginal people. Mr Davies proceeded to read out this joke to the rest of the assembled staff present, the Applicant being among them.
The Second Claim
Shortly prior to Christmas in 2006, the Third Respondent, Mark Tunks, approached the Applicant at a worksite at Cambridge Park and said, in a reference to the impending Christmas Holiday period:
“I suppose you are going home to Bourke at Christmas time and getting drunk with all your abo mates.”
Another employee, Mr Waldemar Miziniak (“Val”), who overheard
Mr Tunks’ comment, approached the Applicant and said he could not believe what Mr Tunks had just said.
The Third Claim
On 22nd December 2006, the Applicant made a formal complaint about these incidents to his Sydney Water Manager, Mr Logan Mahadeva, the Fifth Respondent. It is not clear what kind of procedure, if any, was followed in relation to those complaints. The Applicant was not asked by Mr Mahadeva to formally particularise his complaints, nor was he informed about what process would be followed to investigate and deal with the complaints, on either an individual or an organisational level. After being told that the perpetrators were supervisors, Mr Mahadeva’s response to the applicant was:
“You will just have to put up with it if you want to work for Sydney Water.”
The Applicant told Mr Mahadeva that he did not want to put up with discrimination in the workplace. Mr Mahadeva then told the Applicant he could return to work on 8th January 2007.
The Fourth Claim
On 30th January 2007, the applicant was called into the office of
Mr Graham Turner, General Manager of Sydney Water. Mr Turner congratulated the Applicant for getting his job back and stated that it was “probably best to forget about what happened in 2006.” No other reference was made at this meeting to the complaint made by the Applicant in December 2006, or the incidents which were the subject of the complaint.
The Fifth Claim
Throughout February to April 2006, Mr John Kovac, the Fourth Respondent, one of the Applicant’s Sydney Water supervisors, was noted as routinely referring to persons of different race and skin colour as “black bastards” when he was in the Applicant’s presence.
The Sixth Claim
On 24th January 2007, the Applicant was at a worksite in Kent Street in Sydney. The Applicant had been engaged in digging a trench at the worksite. In response to a passer-by inquiry, the Applicant alleges
Mr Kovac stated:
“I’m going to bury the black bastard down there.”
The Seventh Claim
In May 2007, the Applicant was at the Yagoona depot when he went to the assistance of two fellow workers who he had seen clearing up in the yard. One of these workers said words to the effect:
“Here’s a black man to help you clean up.”
Those words were said within the hearing of other workers who were also present at the depot at the time.
The Eighth Claim
On 30th May 2007 the Applicant’s supervisor, Mr John Kovac, the Fourth Respondent, said to the Applicant:
“Where the fuck have you been, how come it has taken so fucking long?”
The Applicant maintains he was spoken to in this manner because of his Aboriginality.
Evidence
The Applicant swore an affidavit on 15th December 2008. He also relied on an affidavit sworn by Anne Healey and a report by Dr Canaris dated 3rd March 2008.
The Second, Third, Fourth and Fifth Respondents all swore affidavits and gave oral evidence. The Respondents also relied on affidavits by Waldemar Miziniak, Graeme Turner, Trevor Chapman, Victor da Cunha, Matthew Davis and Tod Campbell. The Respondents also relied on a report (undated) by Dr John Albert Roberts.
The Applicant deposed in his affidavit of 15th December 2008 that he was employed by Sydney Water after an interview with the Respondent Mahadeva and two other men. He was employed as a construction worker and generally six days a week.
The Applicant stated in respect of the first claim that he was working at or near Telegraph road, Pymble, when Mark Davies, received a text message:
He called out the text message in words to the effect as follows:
“Aboriginals don’t use soap”
He read it out to the crew of five. I heard it. I suspect he thought it was a joke but I felt humiliated by the so called joke and walked away biting my tongue while the others were laughing. The people on site that day were Col, Mark Davies, another Mark and Dominic as well as myself.[1]
[1] Affidavit of W. Trapman 15.12.2008 at paragraph [13]
The Applicant described the incident leading to the second claim as follows:
Later at a job in Cambridge Park just passed Kingswood, Mark Davies, Val, Col and I were working with another crew. This was on 12 November 2006. We started on this job at 3pm doing a new connection after a pipe had burst. I was filling sand bags. It was about 8.30 pm and Mark Tunks who was a supervisor in the other gang walked passed me and said words to the effect:
“William, I suppose you’re going home to Bourke at Christmas time and getting drunk with all your Abo mates”.
I was offended by this comment due to the term he used and the assumption that all aboriginals drink excessive amounts of alcohol. Val was with me at the time and said words to the effect;
“I cannot believe what Mark Tunks has just said”.
I was humiliated and upset but I did not respond as I feared if I did I would lose my job straight away.[2]
[2] Affidavit of W. Trapman 15.12.2008 at [17]
The Applicant stated that he was depressed by the cumulative effect of the discriminatory behaviour and took time off work from 15th to
22nd December.
The Applicant’s evidence about the third claim is that he attended the work Christmas party where he spoke to the Respondent Mahadeva and asked for a meeting with him. He met him at his office on
22nd December 2006. The Applicant states:
When I met Logan, I explained what had occurred in relation to the discrimination incidents and told him some people complained about were supervisors. I told him about the incident with Mark Davies…I told him about the comment made by Mark Tunks…Logan responded to me with words to the effect;
“You will just have to put up with it if you want to work for Sydney Water”.[3]
[3] Ibid at [23]
Logan Mahadeva told him he could start back at work on 8th January 2007. However, he was later told that there was no work for him and did not work until late January.
Eventually, in late January 2007 he rang the General Manager of Sydney Water, Mr Graham Turner, to complain. Mr Turner asked him to meet him at the depot the following morning.
The Applicant attended the meeting with Mr Turner. Mr Mahadeva was also present. The Applicant deposed that Mr Turner said to him:
“Congratulations you’ve got your job back, let’s forget about what happened in 2006”.
I didn’t say anything in reply. Although they gave me my job back, they did not deal with anything that had gone on before.[4]
[4] Affidavit of W. Trapman 15.12.2008 at [29]
It was this incident that forms the subject matter of the Applicant’s fourth claim.
The Applicant’s fifth claim is set out as follows:
I worked with Steve Carr for about 2 weeks in February 2007 whilst I was on the John Kovac gang from there on. John Kovac made comments referring to “black bastards”. These sorts of comments were often said in common conversation at SWC.[5]
[5] Ibid at [36]
The Applicant’s sixth claim relates to an incident in May 2007. He states in his affidavit:
On one day in May 2007, we were in Kent Street, Sydney doing a job at night. I was in a hole chest high deep. A lady, accompanied by a male person, stopped and in a friendly tone said words to the following effect:
“What are you doing down there?”
Before I could answer John Kovac said:
“I am going to bury the black bastard down there”.
The lady passerby said to John Kovac “What did you say?”
John Kovac was looking directly at me when he said it and there was no laughter after he said it. Matt was standing next to the trench. I was in the trench…John said to me words to the effect:
“Are you offended by this comment”.
I said: “Yes who gives you the right to call me a black bastard?”
John Kovac just walked away.[6]
[6] Affidavit of W. Trapman 15.12.2008 at [37]
The evidence of the Applicant’s seventh claim is set out in paragraph 40 of the Applicant’s affidavit:
Also during May 2007 I was with John Kovac and we went back to the depot because John had to see a manager. I saw a couple of guys cleaning up in the yard and so instead of just standing around I walked over to help clean up. I know one of the men, a Maori bloke whose name is Henry but I don’t know the names of the other three guys who were just standing around while Henry was cleaning up. As I walked up to Henry and offered to help, one of the other three men said words to the effect:
“Here is a black man to help you clean up”.
He said it as if this was a normal comment. I could not believe what I heard. These racist comments seem to be every day comments at Sydney Water. I did not respond to the comment. Instead I just turned and walked away, without helping to clean up. I know the person by appearance but I don’t even know his first name. He was a young man in his late 20s/early 30s. He had black hair and an olive complexion. He worked at Sydney Water for some time. It was clear that nothing had changed from 2006, despite what Graeme Turner had said to me. I did not see any value in complaining again because I had been told I had to put up with the comments.[7]
[7] Ibid at [40]
The Applicant deposed that the incident that makes up his eighth claim arose on his last day at work:
My last day of work at Sydney Water was on 30th May 2007. On that morning John sent Matt and I to another depot to do some tasks. This depot was at or near Kingsford. John told us to take our time because he had to learn about correctly filling in timesheets or something like that. Matt and I went to the other depot and came back around 11:30am. The traffic had been bad in the morning and we also had smoko at that depot. When we got back and met up with John he jumped into the work vehicle and I also climbed in.
John then turned to me and said words to the following effect:
“Where the fuck have you been? How come its taken you so fucking long?”.
I could not believe it. I said to John: “Do not speak to me like that, you told us to take our time”.
John then said words to the following effect:
“It’s only a figure of speech”
I said to him:
“Do not speak to me like that. If you are not happy with me and Matt get someone else”.
The Applicant was cross-examined at some length by counsel for the Respondents.
The Applicant had tendered a report dated 3rd March 2008 from
Dr Christopher Aristides Canaris, a consultant psychiatrist, who had examined him for some other legal proceedings. Dr Canaris set out in his report how the Applicant had mentioned to him his humiliation at being the subject of discriminatory comments about aboriginal people, and how he had recounted to him some of the incidents that formed his complaints in these proceedings. They included:
a)The comment that he would go out to Bourke and “Get drunk with your Abo mates”;
b)Being told that he had to put up with racist comments;
c)Being told by Graham Turner that he had got his job back with the suggestion that he should not take any further action about the previous racist epithets;
d)John Kovac’s comment about “going to bury the black bastard”;
e)Hearing a workmate say “Here comes a black man – he’s going to help you”; and
f)John Kovac’s question “What the fuck’s taken you so long?”.
Dr Canaris diagnosed the applicant as having mixed anxiety depression and stated:
In particular, Mr Trapman seems to have been exposed to significant racially motivated comments – a situation likely to cause anyone distress when it appears to be a pervasive feature of a workplace as opposed to an occasional irritant.[8]
[8] Report Dr C.A. Canaris 3.3.2008 page 4
Dr Canaris gave evidence by telephone. He conceded that the basis for his comment that Sydney Water was a workplace which had, as a pervasive feature, racially motivated comments was the Applicant’s report to him.
Anne Patricia Healey deposed in her affidavit that the Applicant had been a friend of her late partner, Anthony Ian Parker. She deposed that he telephoned her on two occasions in the latter part of 2006, saying that he was upset about an incident at work. He described to her the incidents relating to the joke about Aboriginal people not using soap and the comment about his going to Bourke to get drunk with his “Abo mates”.
Ms Healey also deposed that the Applicant told her about two other incidents, one of which was the incident in Kent Street when he was working in a trench.
The Second Respondent, Mark Davies, gave evidence, denying that he had made any racist comments about the applicant. He said that before he read out the joke that was the subject of the Applicant’s first claim, he asked him:
“This joke is about a black man – I am not aiming it at you. Do you mind if I read it aloud?”.
He deposed that the Applicant agreed.[9] He denied that he had said “I’ll tell you all an Aboriginal joke” or “Aboriginals don’t use soap”.[10]
He denied in cross-examination that he was aiming the joke at the Applicant and said that if the applicant had been offended he would not have read it out.[9] Affidavit of M. Davies 10.8.2009 at [13]
[10] Ibid at [17]
Waldemar Miziniak (known as “Val”) gave evidence. In his affidavit he referred to the circumstances of the Applicant’s second claim, about a comment made to the applicant by the Third Respondent, Mark Tunks, at Cambridge Park. He denied hearing the words alleged to have been said by the Respondent or making any comment to the Applicant about that remark. In cross-examination he said that he had never heard Mr Tunks use the word “abo”.
Matthew Craig Davis deposed that he was working with the Applicant and John Kovac at the worksite in Kent Street. He deposed that he did not remember hearing John Kovac make any comment about “going to bury the black bastard”. He also deposed that he had never heard John Kovac make racist comments to the Applicant or anyone else. He maintained his denials in cross-examination.
Mark Tunks gave an account in his affidavit of the conversation he said that he had with the Applicant about going to Bourke at Christmas:
I can’t remember the exact sequence of the conversation, but as recorded in previous statements I told Mr Trapman that I was making plans for a hunting trip to Bourke and that I go there 2 or 3 times a year. Mr Trapman mentioned that he was going to Brewarrina for Christmas to spend time with his family and he enquired where I was going in Bourke. The conversation continued and Mr Trapman said words to the effect of:
“I am off the drink. I don’t drink anymore.”
To which I replied:
“Don’t start drinking with your brothers when you go home”.[11]
[11] Affidavit of M. Tunks 10.8.2009 at [16]
In cross-examination Mr Tunks denied that he had said “William, I suppose you are going home to Bourke at Christmas and getting drunk with all your Abo mates”. He also denied admitting to Logan Mahadeva that he might have used the word “Abo” in the conversation.
John Kovac, the Fourth Respondent, swore an affidavit on
10th August 2009. He denied that he used the words “We’re going to bury the black bastard” at the worksite, as alleged by the Applicant. He also denied saying to the Applicant “Where the fuck have you been? How come its taken you so fucking long?” on 30th May 2007. He deposed that he asked the Applicant “What took you so long?” and was surprised when the Applicant shouted at him “Why the fuck are you asking me? I wasn’t driving. I haven’t even got a licence”.[12]
[12] Affidavit of J. Kovac 10.8.2009 at [23]
In cross-examination, Mr Kovac denied ever having used the word “bastard”. He denied specifically saying to or referring to the Applicant “I am going to bury the black bastard down there”. He also denied that the Applicant said to him “Who gives you the right to call me a black bastard?”.
Logan Mahadeva, whose full name is actually Mahadeva Logenderan, swore an affidavit on 10th August 2009. He described conducting an investigation into the Applicant’s complaints about the joke read out by Mark Davies and the alleged use of the word “abo” by Mark Tunks. He describes Mark Davies as saying:
I remember reading out a text message about a joke, but it didn’t have anything to do with Aboriginals. I can’t believe that William was offended.[13]
[13] Affidavit of L. Mahadeva 10.8.2009 at [15]
Mr Mahadeva deposed that Mark Tunks said to him:
I can’t believe that, I’ve only met him a few times. I don’t remember saying that word to him. I’ve never directed that word at anyone. If I might have used that word, I wouldn’t have directed it at him. I go to Bourke quite a bit for hunting and people use that word out there between themselves.[14]
[14] Ibid at [16]
He denied the Applicant’s account of the conversation between them on 22nd December 2009. He also deposed:
I have never said anything to Mr Trapman because he is Aboriginal. I myself am of Sri Lankan origin and have dark skin colour. I have been subject to racist comments in the past and am conscious of the offence they cause.[15]
[15] Ibid at [18]
Mr Mahadeva specifically denied in cross-examination that he had said anything along the lines of “You will just have to put up with it if you want to work for Sydney Water”.
Victor da Cunha affirmed an affidavit on 10th August 2009. He denied that he had heard any comment by John Kovac at the Kent Street worksite that he was going to bury “the black bastard” or that he said anything to Mr Kovac as a result. He maintained in cross-examination that he did not hear any comment of that type.
The Respondents relied on a report by Dr John Albert Roberts, a psychiatrist. Dr Roberts examined the Applicant on 26th July 2007.
He found that the Applicant was not suffering from any DSM-IV condition. Dr Roberts was not required for cross-examination.
The Respondents also relied on an affidavit by Mr Tod Campbell, human resources manager for Sydney Water. He was not required for cross-examination.
Mr Trevor Chapman swore an affidavit on 11th August 2009.
His evidence went to the circumstances of the Applicant’s employment and included a reference to the Applicant’s complaints that people were making racist comments about him.
Submissions
It was submitted on behalf of the Applicant that his evidence to the Court on Day Two of the proceedings was consistent with his previous statements. His answers to questions revealed a high level of recall about the incidents which were the subject of his complaints to HREOC. Ms Healey’s evidence confirmed the Applicant’s version of events as to the telling of the joke by Mr Davies and the Applicant being very upset by it.
The evidence of Mark Davies was criticised for its inconsistency and uncertainty. It was of little consequence whether the Court accepted his evidence that he sought the Applicant’s permission to tell the joke. The Applicant should not have been placed in the position of indicating his displeasure that Mr Davies, his senior, was telling racist jokes in the workplace. The very act of seeking the Applicant’s permission to the telling of a joke about a black man satisfies the requisite test that the behaviour of the Respondent contravened the Act.[16]
[16] See Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 at [19]-[23]; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359
The evidence of Mr Tunks is similarly criticised as inconsistent and is contrasted unfavourably with that of the Applicant. He is described as showing a complete lack of understanding about his obligations as a supervisor with regard to inappropriate workplace behaviour.
Mr Miziniak’s evidence was also criticised for its lack of consistency in his level of recall.
Again, it was submitted that Ms Healey’s evidence supported that of the Applicant. The Applicant contends that the Court should accept the version of events that he gave.
The Applicant also submits that the Court would not accept the evidence given by Mr Mahadeva. In cross-examination, he was described as “evasive, hesitant and appeared to intentionally misinterpret questions put to him”.
Mr Graeme Turner agreed that he said to the Applicant “Let’s put 2006 behind us”. It is submitted that there is no evidence that any appropriate action was taken by Sydney Water to address the allegations made by the Applicant.
The Applicant submits that Mr Kovac’s evidence that throughout February to April 2006 he did not routinely refer to people as “black bastards” and that he has never used the word used the word “bastard” should not be believed. Similarly, his evidence about the Kent Street incident should not be accepted.
The Applicant was described as consistent and unmoved in his evidence about the Kent Street incident. On the other hand, Matthew Davis was not described as an impressive witness. Whilst he did admit to having heard the Applicant say that Mark Tunks had been racist towards him, he denied knowing the particulars. His evidence was described as inconsistent.
The Applicant concedes that there is no independent corroborative evidence that in May 2007 an unnamed worker said “here’s a black man to help you clean up”. Nevertheless, it is submitted that there is no reason why the Court should not accept the Applicant’s version of the event. It was never put to the Applicant that he was not truthful in making the allegation or that he was exaggerating his complaint.
The submission is that the evidence given by the Applicant in relation to the other instances of discrimination in the workplace allows the Court to infer that comments such as that could have been made and, with no evidence to the contrary, the Court should accept the truth of the Applicant’s statement.
The final claim by the Applicant concerns an alleged statement by
John Kovac on 30th May 2007 to the applicant “Where the fuck have you been, how come it has taken so fucking long?”
The Applicant maintains that he was spoken to in this manner because of his Aboriginality. It is submitted that in the context of the Applicant’s other complaints regarding the behaviour and treatment of him by Mr Kovac the Court should accept that the making of the statement and the manner in which it was said was because of his Aboriginality. Mr Kovac’s evidence regarding the making of the statement and the manner in which it was said is inconsistent.
The Applicant also submits that there is evidence of systemic racial discrimination at Sydney Water. Given the weight that should be given to the evidence of the Sydney Water employees, particularly in light if their inconsistencies when compared given by the Applicant, an inference can and should be drawn that the Applicant’s different and unfavourable treatment was a result of his Aboriginality and for no other reason.
Further, it is submitted that there is no evidence that Sydney Water had any policies dealing with workplace discrimination or that it provided any adequate training as to appropriate workplace behaviour.
The Applicant seeks an award for payment of financial compensation. He was unemployed from 31st May 2007. He received workers compensation payments from 6th June 2007 to 8th May 2008. He then gained employment. What is submitted is that he should receive damages sufficient to place him in the position in which he would have been had there not been an act of unlawful discrimination committed against him.
Counsel for the Respondents submitted that the Applicants’ submissions misrepresent or overstate the evidence in several key respects, particularly the evidence of Mr Davies, Mr Tunks and
Mr Miziniak. It is further submitted that:
a)The Applicant’s submissions refer to matters entirely irrelevant to any fact in issue and/or are based on incoherent logic;
b)His submissions do not deal with his own deficiencies and shortcomings as a witness;
c)His claims for monetary relief must be viewed in the light of the circumstances surrounding the making of his complaints; and
d)His submissions rely heavily on Ms Healey’s evidence, which was adduced to establish evidence of his state of mind within the meaning of s.66A of the Evidence Act 1995. However, no part of the Applicant’s submissions deals with the Applicant’s state of mind or why this evidence is relevant to any fact in issue; it contains second hand hearsay. Her evidence cannot be admissible to prove the truth of what the Applicant told Ms Healey that others had said to him.
Counsel for the Respondents submitted that each one of the Applicant’s claims had not been made out and should therefore be dismissed.
It is further submitted that there is no warrant for making any findings about systemic issues within Sydney Water and such findings would be prejudicial in circumstances where the Court has heard evidence from only one complainant from a population of many thousand employees and contractors.
If the Court were to make any findings as to systemic discrimination, then Sydney Water would wish to be heard on an application for leave to reopen its case.
Importantly, the Court was told that as a model litigant Sydney Water concedes that, in the event of any of the eight claims being substantiated, it would accept vicarious liability and would not rely on a defence under s.18E(2) of the Racial Discrimination Act.
The Respondents submit that the Applicant has not suffered any loss or damage because of their conduct, or at all. Even if any of the Applicant’s eight claims were established, no compensation should be awarded to the Applicant.
The submission is that the Applicant has not suffered any psychiatric injury and has not suffered any loss or damage.
The Applicant’s submissions in reply do not take the matter much further, in my view. The Applicant makes the point that Ms Healey’s evidence is limited to its particular use as a contemporaneous statement and her evidence has never been intended to prove the factual content of the conversation passing between Ms Healey and the Applicant.
Conclusions
The Applicant makes eight separate claims of discrimination on the basis of his Aboriginal race by the Respondents.
Direct race discrimination is prohibited by s.9(1) of the Racial Discrimination Act, which provides:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
It is well established that the making of a remark is an act:
It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race.[17]
[17] Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at 564 (76)
The denigration of an employee on the grounds of that person’s race can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or just and favourable conditions of work.[18]
[18] Qantas Airways ltd v Gama at 564 (77)
Remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging effect on that person’s perception of how he or she is regarded by fellow employees and his or her superiors.[19]
[19] Qantas Airways Ltd v Gama at 564 (78)
All of the Applicant’s claims are based on remarks of one sort or another.
The onus of proof of an act of racial discrimination lies with the Applicant.
The Applicant’s submission at page 14 provides a useful summary of the principles to be considered, drawing on the various authorities.
As Einfeld J said in Bennett v Everitt[20] at 77,271:
Positive proof of discrimination on at least some of the grounds covered by the Act will often be difficult for complainants…This means that many discrimination cases…have to be proved by comparatively weak circumstantial evidence, without direct or perhaps any witnesses and based only on an intuition or a deeply held belief that there has been discrimination.
In Qantas Airways Ltd v Gama at [122]-[139], Branson J set out some useful views on the issues of the appropriate standard of proof in racial discrimination matters. Her Honour referred to the statement by Dixon J in Briginshaw v Briginshaw[21]:
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[22]
[20] (1988) EOC 92-244
[21] (1938) 60 CLR 336
[22] (1938) 60 CLR 336 at 362, cited at (2008) 167 FCR 537 at 573 [124]
The Court is required to find the Applicant’s case proved if it is satisfied that his case has been proved on the balance of probabilities (s.140(1)) of the Evidence Act). However, the Court is required to take into account the three matters specifically mentioned in s.140(2) of the Evidence Act.
Those three matters are:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is open to the Court to have regard to other relevant matters, which could include “the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged…and the long-standing common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict”.[23]
[23] (2008) 167 FCR 537 at 576 [138]
I have taken those principles into account considering the Applicant’s claims.
The Applicant’s first claim relates to the actions of the Second Respondent, Mr Davies, in reading out a joke based on coloured people. The Applicant claims that the Second Respondent said “Aboriginals don’t use soap. I’ll tell you all an Aboriginal joke” and then proceeded to read out a joke that had been sent to him by text message on his telephone.
The Applicant relies on his own evidence. The evidence of Ms Healey goes to the fact that the Applicant told her that he was upset about some remarks, one of which was that Aboriginals do not use soap. Her evidence on that point is, of course, hearsay, and is no more than an account given by the Applicant himself. The evidence may go to establishing the Applicant’s state of mind but it does not go to the truth of what was said by the Second Respondent.
The Second Respondent’s account is that first of all he asked the Applicant’s permission to read the joke out loud, and the Applicant did not demur. He did not intend to cause the Applicant any offence. This does not provide a defence. As Kiefel J held in Creek v Cairns Post Pty Ltd[24] at [23]:
…discrimination legislation operates with respect to unconscious acts and that it is not necessary that there be a conscious appreciation, on the part of the discriminator, of their actions.
[24] [2001] FCA 1007; (2001) 112 FCR 352
In a statement annexed to his affidavit of 10th August 2009, the Second Respondent sets out the text of the joke which he claims to have read out:
The joke went along the lines of, “A black man went to the doctor because he could not stop jogging. The doctor gave him white powder and told the man to swallow it. The man stopped running instantly and asked the doctor what the powder was. The doctor replied that it was ‘Omo’ and Omo stops colours running.[25]
[25] Affidavit of M. Davies 10.8.2009 at Annexure “B”
Aside from the fact that it is a very weak joke, it is clearly racist, and whilst it does not specifically refer to Aboriginal people, it has a clear linkage to the Applicant’s race.
I am satisfied that the Applicant’s first claim has been made out.
The Applicant’s second claim relates to a remark said to have been made to the Applicant by the Third Respondent, Mr Tunks:
“William, I suppose you’re going home to Bourke at Christmas time and getting drunk with all your abo mates”.
The Applicant relies on his own evidence. Again, the evidence of
Ms Healey states this was one of the remarks that the Applicant had told her about. As before, her evidence is hearsay and does not corroborate the Applicant’s claim that the remark was made, nor, in fairness, was it intended to do so.
The Third Respondent denied that he made any remark about the Applicant’s “abo mates”.
The Applicant claimed that his co-worker “Val”, Waldemar Miziniak, then said to him:
“I cannot believe what Mark Tunks has just said”.
However, in his evidence, Mr Miziniak denied that:
a)He had heard any remark of that nature by the Third Respondent to the Applicant; and
b)He had made the comment to the Applicant that the Applicant claimed.
The evidence of Mr Tunks and Mr Miziniak is not as inconsistent or as unreliable as the Applicant submits.
Whilst the Applicant has given clear evidence of the alleged remark, in the light of the firm denials by both Mr Tunks and Mr Miziniak, the Court cannot be satisfied that the claim has been made out.
The Applicant’s third claim concerns a statement allegedly made to him by Logan Mahadeva, the Fifth Respondent, on 22nd December 2006, being “You will just have to put up with it if you want to work for Sydney Water”.
The Applicant gives evidence that the statement was made, and
Mr Mahadeva expressly denies it. There is nothing to lead the Court to the view that the evidence of one or other party is inferior to the evidence of the other, so it stands as an uncorroborated assertion which is denied.Even if I were satisfied that there is proof that the alleged statement was made, it is doubtful that it would constitute a remark that was of itself discriminatory. It is a statement about discriminatory acts but it is not of itself an “act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin” (s.9(1)). It may go towards the Applicant’s claim that there was systemic racial discrimination at Sydney Water, but it is not, in my view, an act of discrimination in itself.
The Applicant’s third claim has not been made out.
The Applicant’s fourth claim relates to the meeting that he had with Graeme Turner on 30th January 2007, where Mr Turner is said to have said:
“Congratulations, you’ve got your job back, let’s forget about what happened in 2006”.
Again, this remark may go towards establishing the Applicant’s claim that Sydney Water had a culture of systemic racial discrimination, but it is not, to my mind, an act of discrimination in itself. In any event, the meaning of the remark is ambiguous. It could just as easily be argued that the remark referred to the fact that the Applicant had absented himself from work in late 2006, in his view because of the distress caused by the earlier discriminatory remarks.
I am not satisfied that the Applicant’s fourth claim has been made out.
The Applicant’s fifth and sixth claims both relate to remarks said to have been made by John Kovac, the Fourth Respondent.
The Applicant’s evidence about the fifth claim is that he worked on a gang with John Kovac who would make comments referring to people as “black bastards”.
There is no corroborating evidence. The use of the term “bastard” was specifically denied by John Kovac. The details are so vague that, in the light of the denial, the Court cannot be satisfied that the claim has been proved to the requisite standard.
The Applicant’s fifth claim has not been made out.
The Applicant’s sixth claim also relates to John Kovac and concerned a remark that he is said to have been made when the Applicant was working in a trench at a worksite in Kent Street, Sydney, in May 2007. The remark complained of was said to have been made to two members of the general public, a man and a woman, who asked “What are you doing down there?”.
It is the Applicant’s evidence that Mr Kovac said words to the effect of:
“I am going to bury the black bastard down there”.
The Applicant said that Matt Davis was standing next to the trench when the Respondent Kovac said those words.
The Applicant’s evidence as to this remark is not only uncorroborated, it is specifically denied by John Kovac. Matthew Davis, who was present and presumably within earshot, gave evidence that he did not remember Kovac making any comment of that nature. Victor da Cunha, who was present at the site for part of the time, also denied that he had heard Kovac make any remark of that nature or that he said anything to him as a result.
This is an instance where the Court would consider other relevant matters, particularly in this case, “the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged”.[26]
[26] Qantas Airways Ltd v Gama (2008) 167 FCR 537 at 576 [138]
The evidence of Mr da Cunha is that he is employed as a Project Co-ordinator and is responsible for co-ordinating the activities of different gangs and liaising with the job supervisors of those gangs.[27] It appears that he is John Kovac’s superior. The unlikelihood of Kovac making a blatantly racist comment in the presence of his superior and two members of the general public is a matter that the Court must take into account.
[27] Affidavit of V. da Cunha 10.8.2009 at [2]
The Applicant’s sixth claim fails.
The Applicant’s seventh claim refers to a statement allegedly made by a man at the depot in May 2007 when the Applicant had offered to help some other men clean up in the yard. The man, whose name the Applicant does not know, is said to have said:
“Here is a black man to help you clean up”.
The allegation is short on detail. As the Applicant concedes in his submission at paragraph 47:
Other than the statement by Mr Trapman that these words were used, there is no independent corroborative evidence to substantiate the allegation.
The Applicant goes on to submit that there was no reason why the Court should not accept the Applicant’s version of the event. There is no other version, I note.
The Applicant submits that it was never put to him in cross-examination that he was not truthful in making the allegation or that he was exaggerating his complaint. Further, it was put that the evidence given by the Applicant of other instances of discrimination in the workplace allow the Court to infer that comments such as that could have been made and, with no evidence to the contrary, the Court should accept the truth of the Applicant’s statement.
With respect, that is drawing rather a long bow. The onus of proof still remains with the Applicant. It is not sufficient to say that the Applicant had made other complaints about discrimination and so this one should also be accepted. Only one of the Applicant’s claims has been established.
It is the Applicant’s evidence that one person present at the time, although not the person who is alleged to have made the comment, was a man that the Applicant knew, “a Maori bloke named Henry”.[28] This person could presumably have given corroborative evidence if he were to have been called. There is no evidence as to what, if any, inquiries were made to locate a Maori man named Henry who worked for Sydney Water in May 2007 and obtain a statement from him.
[28] Affidavit of W. Trapman 15.12.2008 at [40]
I am not satisfied that the Applicant’s seventh claim has been made out.
The Applicant’s eighth and final claim again related to John Kovac. He said that he and Matt Davis had been at another depot and were delayed by heavy traffic, so that they did not return until about 11:30am. The Applicant claims that he and John Kovac both got into a vehicle and Kovac said to him “Where the fuck have you been? How come it’s taken you so fucking long?”.
There is no evidence that Matt Davis was in the vehicle or otherwise in a position to hear those words and he was not cross-examined on that issue.
The evidence of Mr Kovac on the issue is that he merely asked the Applicant “What took you so long?” and was surprised when the Applicant shouted at him “Why the fuck are you asking me? I wasn’t driving. I haven’t even got a licence”.
The conflicting versions of the one event do not allow the Court to find that the claim has been established, as the onus of proof lies with the Applicant.
It is doubtful that the remark, even if it were proved, would be found to be an act of discrimination. I note, however, that the Full Court of the Federal Court adverted to that issue in Qantas Airways Ltd v Gama[29], where French and Jacobson JJ said at [76]:
The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic.
[29] Supra
In this case, there is nothing in the circumstances in which the remark was made, if it were made in the way that the Applicant claims, that would allow a linkage to be drawn to the Applicant’s race. The Applicant has claimed that there were several racist remarks made to him or in his presence by the respondent Kovac, but the Court has not found any of the other claims to have been established.
Thus, there is no evidence of a pattern of remarks directed to the Applicant by this particular Respondent that would allow a linkage to be made to the Applicant’s race.
The Applicant’s eighth claim has not been established.
Thus, only one claim, the first claim about the racist joke has been established.
I am not satisfied that the evidence leads to any finding of systemic racial discrimination on the part of Sydney Water.
The Applicant has sought to show, from the evidence of Dr Canaris, that he has suffered a psychiatric illness as a result of the discrimination he has suffered. Dr Canaris was subjected to cross-examination as to his diagnosis. The evidence of Dr Roberts, which was not subject to cross-examination, was that he did not have a psychiatric condition.
I prefer the evidence of Dr Roberts, whose evidence was unchallenged. Dr Roberts was firm in his diagnosis, made after he examined the Applicant on 26th July 2007;
The clear absence of any significant impairment in functioning is illustrated by the fact that Mr Trapman while he prefers not to work for Clexan-Peak Sydney Water, is clearly able in terms of his perception to work elsewhere. I emphasise such is inconsistent with the diagnosis of an adjustment disorder.
Mr Trapman’s assertion of being upset is understandable, he is not mentally unwell.
There is nothing to prognosticate about since there is no condition. Mr Trapman is fit for whatever work he wishes to do.
I reiterate there is no basis to assert a diagnosis of a DSM-IV condition.
I am not satisfied that the Applicant has suffered any pecuniary loss as a result of the one claim of racial discrimination, the telling of a racist joke in his presence. This is not to say that he has not suffered any hurt or humiliation as a result, because he has given evidence that he has, which is corroborated by the evidence of Ms Healey.
In my view, the Court should make an award of general damages sufficient to compensate the Applicant for the hurt and humiliation he suffered. As the Full Court said in Qantas Airways Ltd v Gama:
The damages which may be awarded under s.46PO(4) are in the discretion of the Court. They are ‘by way of compensation for any loss or damage suffered because of the conduct of the respondent.’[30]
[30] Per French and Jacobson JJ at 569 [99]
There is no economic loss. The authorities suggest that awards of general damages for hurt, humiliation and distress should be restrained in quantum, although not minimal. In Hall v Sheiban[31] Wilcox J adopted as a statement of principle, the decision of May LJ in Alexander v Home Office[32]
As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained.[33]
[31] (1989) 20 FCR 217
[32] [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122
[33] Cited at (1989) 20 FCR 217 at 256
The injury comes from the telling of a weak and unfunny racist joke. This practice should not be permitted in the workplace. However, the act of racial discrimination is at the lower end of the scale and a restrained award, but not a minimal award, is to my mind appropriate. I propose to order that the First and Second Respondents pay to the Applicant by way of damages the sum of five thousand dollars.
The application will be dismissed as against the Third, Fourth and Fifth Respondents.
The Court will hear submissions on costs.
I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 31 May 2011
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