Turner and Maunsell Australia Pty Ltd
[2006] WASAT 52
•3 MARCH 2006
TURNER and MAUNSELL AUSTRALIA PTY LTD [2006] WASAT 52
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 52 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:126/2005 | 20 FEBRUARY 2006 21 FEBRUARY 2006 22 FEBRUARY 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER) MR J MCKIERNAN (SESSIONAL MEMBER) | 3/03/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | No case to answer - application dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAROL BERNADETTE TURNER MAUNSELL AUSTRALIA PTY LTD |
Catchwords: | Equal Opportunity Act 1984 (WA) Discrimination on the ground of sex Victimisation Employment Application by respondent to have proceedings dismissed on ground no case to answer No evidence of less favourable treatment within the meaning of s 8 No actual or hypothetical comparator No evidence any unequal treatment related to applicant's sex No case to answer Application dismissed |
Legislation: | Equal Opportunity Act 1984 (WA), s 8, s 11, s 67, s 83(4), s 90, s 90(2) State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a) |
Case References: | Chung v University of Sydney [2001] FMCA 94 Chung v University of Sydney [2002] FCA 186 Dare v Hurley [2005] FMCA 844 Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129 Mooney v Commissioner of Police, New South Wales Police Service (2003) EOC 93-281 Paramasivan v Grant [2001] FMCA 882 Rana v University of South Australia [2004] FCA 559 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : TURNER and MAUNSELL AUSTRALIA PTY LTD [2006] WASAT 52 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS H LESLIE (SENIOR SESSIONAL MEMBER)
MR J MCKIERNAN (SESSIONAL MEMBER)
- 21 FEBRUARY 2006
22 FEBRUARY 2006
- Applicant
AND
MAUNSELL AUSTRALIA PTY LTD
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) - Discrimination on the ground of sex - Victimisation - Employment - Application by respondent to have proceedings dismissed on ground no case to answer - No evidence of less favourable treatment within the meaning of s 8 - No actual or hypothetical comparator - No evidence any unequal treatment related to applicant's sex - No case to answer - Application dismissed
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Legislation:
Equal Opportunity Act 1984 (WA), s 8, s 11, s 67, s 83(4), s 90, s 90(2)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a)
Result:
No case to answer - application dismissed
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : N/A
Solicitors:
Applicant : Self-represented
Respondent : Gadens Lawyers
Case(s) referred to in decision(s):
Chung v University of Sydney [2001] FMCA 94
Chung v University of Sydney [2002] FCA 186
Dare v Hurley [2005] FMCA 844
Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129
Mooney v Commissioner of Police, New South Wales Police Service (2003) EOC 93-281
Paramasivan v Grant [2001] FMCA 882
Rana v University of South Australia [2004] FCA 559
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The applicant claimed that she was discriminated against by her employer on the ground of her sex and that she was victimised contrary to the Equal Opportunity Act 1984 (WA).
2 The applicant was employed as a bookkeeper and cited, as evidence of unlawful discrimination, another employee compared with whom she claimed she worked at a higher level and for a lower salary. It was not in dispute that the applicant was a good worker who operated above the level required of her position. In contrast, the Tribunal heard evidence that the male employee with whom she compared her own treatment, was not performing at the level expected of him. The applicant's manager, whom she called to give evidence on her behalf, gave evidence that, while the treatment of the two employees was inequitable, it had nothing to do with their sex. The Tribunal accepted his evidence.
3 At the close of the applicant's case, the respondent submitted that there was no case to answer and the proceedings should be dismissed.
4 The Tribunal decided that there was no evidence before it on which it could possibly find the applicant's claims of unlawful discrimination on the ground of sex, and victimisation, made out. It accepted the respondent's argument that it had no case to answer and dismissed the application.
Background
5 These proceedings arise out of a complaint to the Commissioner for Equal Opportunity (the Commissioner) by Carol Bernadette Turner that she was discriminated against on the ground of her sex, and that she was victimised, by her employer, Maunsell Australia Pty Ltd, contrary to the Equal Opportunity Act 1984 (WA) (the Act).
6 Ms Turner lodged her complaint with the Commissioner on 30 September 2004. The Commissioner investigated the complaint and dismissed it as misconceived and lacking in substance. On 23 March 2005, the Commissioner wrote to Ms Turner advising of her decision, outlining her reasons for dismissing the complaint, and notifying Ms Turner of her rights under s 90 of the Act.
7 On 26 April 2005, Ms Turner notified the Commissioner that she required her complaint to be referred to the Tribunal pursuant to s 90(2) of
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- the Act. The Tribunal received the referral on 26 May 2005, together with a report from the Commissioner outlining the background and progress of the complaint, and attaching various documents provided by the parties for the purposes of her investigation.
8 At a preliminary hearing on 24 June 2005, the respondent advised the Tribunal it would be seeking to have the application struck out pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) on the ground that it was misconceived and lacking in substance. The Tribunal ordered parties to attend a compulsory conference on 26 July 2005 with the aim of identifying the issues in dispute and promoting their resolution. The Tribunal subsequently ordered parties to file and serve statements of issues, facts and contentions on which they intended to rely at the hearing with a view to the respondent's application under s 47 being dealt with, if required, after that. The substantive application was listed for hearing on 20, 21 and 22 February 2006.
9 On 21 September 2005, Ms Turner having filed and served her statements of issues, facts and contentions, the respondent notified the Tribunal formally that it was seeking to have the application struck out on the grounds that Ms Turner's statement did not disclose any facts on which the claim could be supported and did not identify the facts and contentions which might found a breach of the Act; further, that the statement contained a number of irrelevant matters. Submissions in support of the application were filed and served on 30 September 2005 and Ms Turner subsequently filed a response to those submissions.
10 The respondent's application to have the proceedings struck out was considered by Deputy President Chaney on 9 February 2006. On that date he ordered the hearing proceed on 20, 21 and 22 February, but be limited initially to the presentation of the applicant's case, at the end of which it was anticipated the respondent would renew its application to have the matter struck out or make a submission of no case to answer; the Tribunal would then deliver its decision on the respondent's submission before the respondent would be required, if at all, to present its evidence at a further date to be fixed.
11 In the course of the preliminary hearings, a number of issues arose to do with jurisdiction and the extent to which, if at all, the Tribunal was limited to matters referred to it by the Commissioner pursuant to s 90(2) of the Act. In particular, a question arose as to whether the Tribunal was bound to deal only with matters arising in the 12 months immediately prior to Ms Turner's complaint to the Commissioner (see s 83(4) of the
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- Act). Ms Turner conceded before the hearing that only the period 12 months immediately prior to her complaint to the Commissioner would be relevant for the purposes of the proceedings.
12 On 20 and 21 February 2006, Ms Turner presented her case. She was represented, by leave of the Tribunal, by her husband, Kevin Murrell. The respondent was represented by Mr Drake-Brockman and Mr Jackson of Gadens Lawyers. The Tribunal heard oral evidence from Ms Turner and from Leith Langsford, Vicki Todd, Katrina Harvey and Alastair Campbell, all of whom worked, at different times, for the respondent.
13 At the conclusion of Ms Turner's case, Mr Drake-Brockman submitted there was no case for the respondent to answer and that the proceedings should be struck out. On 22 February 2006, the Tribunal heard argument on these questions.
14 To avoid confusion, we refer in these reasons to Ms Turner as "the applicant" even though these reasons concern the respondent's application to have the proceedings struck out.
What must the applicant establish?
15 To make out a claim of unlawful discrimination on the ground of her sex, Ms Turner must establish, firstly, that she was treated less favourably than, in circumstances that are the same or are not materially different, her employer treated, or would have treated, a male employee. Secondly, she must establish that the reason for the less favourable treatment was her sex: s 8 and s 11 of the Act.
16 To make out a claim of victimisation, Ms Turner must establish that the respondent subjected, or threatened to subject, her to any detriment on the ground that she had made, or proposed to make, a complaint under the Act; that she had brought, or proposed to bring, proceedings against the respondent or any other person under the Act; or that she did, or proposed to do, any of the other acts which can ground an allegation of victimisation: s 67 of the Act.
17 "Less favourable treatment" necessarily involves another person by comparison with whom an applicant can say her treatment was less favourable. That person must be in "circumstances" which are "the same" or "not materially different": s 8 of the Act. The identification of what is commonly called a "comparator" is an essential element of the statutory formula of direct discrimination. There will not always be an actual
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- person in comparison with whom a complainant is less favourably treated. It may be that the comparator is necessarily hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service (2003) EOC 93-281. It is not necessary that both persons be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the complainant and the actual or hypothetical comparator to form the basis of an appropriate comparison.
The respondent's argument that there is no case to answer
18 The respondent submits that Ms Turner's claim is frivolous, vexatious, misconceived, and lacking in substance; that it is untenable because it discloses no cause of action, and it should therefore be dismissed or struck out pursuant to s 47 of the SAT Act.
19 The respondent says Ms Turner has failed to produce any evidence to support a finding that she was discriminated against contrary to the Act on the ground of her sex. In particular, the respondent says that that there is no evidence before the Tribunal of a comparator who could form the basis for a finding of discriminatory treatment within the meaning of the Act, and the person with whom Ms Turner compares her own treatment had a different position, different duties, and was not in the same, or not materially different, circumstances.
20 The respondent refers to evidence before the Tribunal which, in its submission, establishes that, not only was the purported comparator not treated more favourably than Ms Turner, he was in fact treated less favourably then her.
21 Finally, the respondent says that, even if there were any evidence of less favourable treatment, there is no evidence on which the Tribunal could find Ms Turner's sex was the ground for any less favourable treatment; no evidence has been led of any causal connection between her claimed less favourable treatment and her sex.
22 The respondent submits that Ms Turner's failure to demonstrate any basis of comparison for the purpose of sex discrimination renders her application untenable and "wholly unarguable".
Ms Turner's case in relation to the claim of sex discrimination
23 In May 1997, Ms Turner commenced employment as a bookkeeper with what was then Halpern Glick and Maunsell, an engineering company. It is not in dispute that, of a workforce of some 140, only about
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- 20 were women. Almost all of the women were employed in administration positions and were, as a group, on lower salaries than the engineers, draftspersons and senior managers, almost all of whom were men and, as a group, were on higher salaries. Within the administration section, the two highest paid staff were the section manager, Mr Alastair Campbell, and Mr Steve Hunter. The Tribunal heard evidence that no one in the company had a formal job description or statement of their duties.
24 As noted above, the relevant period for the purposes of these proceedings is 1 September 2003 to 1 September 2004, being the 12 months immediately preceding Ms Turner's complaint to the Commissioner.
25 According to the respondent's salary records at December 2003, Ms Turner was employed under the classification "Administration Officer" and the title "Accounts Officer". At some point, she assumed the title "Senior Bookkeeper" which she considered reflected the level of her skills and seniority in the administration section. It does not appear that anyone challenged her use of this title.
26 In 2003, Halpern Glick and Maunsell merged with Maunsell Australia. The merger was formally announced to employees in April 2003 and, insofar as it affected Ms Turner's duties, it was completed by September 2003. It is not in dispute that the merger involved transferring some of Ms Turner's duties, and those of some other employees, to offices of the company in Queensland and Victoria.
27 It is not in dispute that Ms Turner did her job well and was well regarded. It appears, from the evidence, that not only did she perform her own duties well, she took on additional duties at a higher level than her position required. For instance, during her time at Maunsell, several new accounting software packages were introduced, most of them complex. Ms Turner was involved in introducing the packages and training others in their use, skills not normally required of someone in her position. Her evidence about the level at which she worked, and her performance generally, was supported by all of her witnesses and the Tribunal has no reason to doubt her claims.
28 As evidence that she was treated less favourably than another person in the same, or not materially different, circumstances, Ms Turner relies on what she claims was the relatively favourable treatment of Mr Hunter.
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29 According to the respondent's salary records at December 2003, Mr Hunter was employed under the classification "Senior Administration Officer" and the title "Assistant Accountant/Accounts officer". Ms Turner claims that Mr Hunter was paid considerably more than she was for work at a lower level of skill than hers. While there was some disagreement between Ms Turner and the respondent as to exactly how much more Mr Hunter was paid, and whether his access to a company vehicle was part of his remuneration package or an informal arrangement, it is clear that, in the relevant period, his salary was in the vicinity of $8000 more than Ms Turner's.
30 The Tribunal has before it copies of performance appraisal documents ("Maunsell and Me") for Ms Turner and Mr Hunter as at October 2003 which describe their respective duties. Both appraisals were conducted by the Administration Manager, Mr Alastair Campbell. The Tribunal also has before it a document, prepared by the respondent, setting out Ms Turner's and Mr Hunter's duties. Ms Turner disputes how some of Mr Hunter's duties are described in the document and says that she in fact performed some of them; in her view, the document inflates some of Mr Hunter's duties and does not reflect altogether fairly her own duties. In any event, it is evident that their roles and duties were different.
31 Mr Campbell, to whom Ms Turner reported, supported her claims about the standard and level of her work. He gave evidence that Mr Hunter's role was not comparable in range or complexity to hers: his duties were relatively less complex and onerous; he performed a narrower range of tasks and had to consult with Ms Turner and other women in the section if he could not reconcile accounts; he was not familiar with the software packages; his other duties, such as administration of the car pool, and petty cash, were "fairly minor" in scope; by the time Mr Hunter left the company in January 2004, many of his duties had been transferred to other offices; the remainder were taken over by Ms Turner, Ms Harvey or Mr Campbell.
32 Mr Campbell gave evidence that, by comparison, some of the work performed by Ms Turner was at a higher skill level than would ordinarily be expected of someone in her position, and he gave examples. He described being introduced to Ms Turner and Mr Hunter when he started work at Maunsell in April 2000. He understood that Mr Hunter, who had his own office whereas Ms Turner and others were in an open plan area, was Ms Turner's supervisor and that she reported to him. Mr Campbell gave evidence that it was in fact Mr Hunter's duty to supervise Ms Turner and the team, but there were "tensions" and, to overcome these,
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- Mr Campbell had Ms Turner and the team report direct to him. In effect, he and Ms Turner and the other women worked around Mr Hunter; although it was Mr Hunter's job to supervise Ms Turner and her team, Mr Campbell gave evidence that Mr Hunter was not able to supervise and he did not generally perform duties at the level required of his position. Ms Todd and Ms Harvey supported his evidence.
33 It was evident that, consistent with his title, his role as supervisor and his remuneration, Mr Hunter should have been performing at a considerably higher level of skill than he was. It appears that, at least in the relevant period, some of his duties were relatively mundane, including such things as attending to the car pool. It appears that he was dependent on Ms Turner and the other women in the team for a lot of detailed information, and there were some tasks, such as using spreadsheets, that he was not able to perform himself.
34 The period under consideration must be viewed in light of the restructuring of the company that was happening at the time. One immediate effect was that both Mr Hunter's and Ms Turner's jobs changed significantly when a large part of their duties, particularly their higher level duties, were transferred to offices in other states. Towards the end of 2003, Mr Hunter's position became redundant; he was offered a position at a lower level but declined it and in January 2004 he was given a redundancy payment.
35 In January 2004, Ms Turner's salary was increased following a national salary review. There was some conflict in the evidence as to how much above the national average her salary increase was, but Ms Turner did not dispute that it was above average. She was not happy with the increase which she considered did not reflect her skills and ability. Nor was she happy with the relatively low level of tasks left to her after her higher level duties were transferred, or what she considered the respondent's failure to offer adequate retraining and other development opportunities. In September 2004 she resigned from the company.
36 It is not surprising that Ms Turner felt aggrieved by the apparent inequity in her performance and salary, and that of Mr Hunter. However, unless any less favourable treatment was on the ground of her sex, it will not found a claim of unlawful discrimination.
37 As evidence that her sex was the basis for what she says was Mr Hunter's more favourable treatment, Ms Turner points to the respondent's "male-dominated" workplace, and says that, at its heart, this
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- is a case about sexism, that sexism is insidious and subsists in covert attitudes and conduct which make it difficult to recognise. Ms Turner cites as evidence of the respondent's inherently sexist workplace a lack of equal opportunity policies, special measures to improve conditions for women employees, a Women's Officer, and so on. The claim about the lack of equal opportunity policies is disputed by the respondent but, in the end, nothing turns on this.
38 It is not in dispute that the respondent's workforce was overwhelmingly male and that the relatively few women were almost entirely concentrated in the administration section. Nor is it in dispute that, compared with the administration section, the engineers and draftspersons were better paid. It is Ms Turner's claim that this gave rise to an atmosphere of sexism in which women were undervalued and she was discriminated against.
39 Ms Turner claims that she was treated with disrespect by the respondent as compared with male workers at a similar level of skills and experience. She maintains that male workers were paid more, had more training and other opportunities, and that there was, generally, an "intimidating, sexist atmosphere" in the company. In support of this, she cited the behaviour of two senior male employees whose behaviour towards some other female employees was, it appears, on three or four occasions, overbearing and rude. Ms Turner's evidence about these incidents was supported by her witnesses. None of them involved Ms Turner directly. The Tribunal accepts that these incidents occurred and that they amounted to rude and overbearing conduct by the individuals concerned. However, there is no evidence before the Tribunal to support a conclusion that the atmosphere was generally sexist or disrespectful towards women. Indeed, Ms Turner cited as evidence of her superior skills and experience the fact that engineers would consult her, rather than Mr Hunter, with their inquiries and that she related well with them. There is no evidence to suggest that they were not respectful towards, and appreciative of, her.
40 Mr Campbell told the Tribunal that he did not think Maunsell's was a very good place to work: in particular, administrative staff were undervalued. Asked for an example of how this manifested itself, Mr Campbell said that, for example, if more staff were required in the administration area to get through the work load staff would not be made available, whereas the engineers and draftspersons would get additional staff if needed.
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41 Asked by the Tribunal whether Ms Turner's sex had anything to do with the inequity between Mr Hunter's duties and pay, and her duties and pay, Mr Campbell was quite clear. He said it did not: it had nothing to do with gender, it would have been the same if they were both men or both women; Ms Tuner performed her duties well whereas Mr Hunter did not.
Ms Turner's case in relation to the claim of victimisation
42 In her complaint to the Commissioner, Ms Turner claimed that, once she raised with the respondent her relatively unequal salary compared with Mr Hunter's, she was given the "cold shoulder". There is no evidence before the Tribunal to suggest that this treatment, if it happened, was in response to a complaint, or intention to make a complaint, about her treatment. In fact, her complaint was not made until September 2004, after she left the company. There is no evidence before the Tribunal which might support a finding that any "cold shoulder" treatment had any causal connection with this complaint. Ms Turner did not bring any evidence to support her assertion that she received the "cold shoulder" other than to say that, once she had raised the matter of her salary compared with Mr Hunter's, she felt she was treated with disdain; she felt slighted and still has not received a reference from the company despite seven years hard work. The respondent disputes this, saying that it simply could not agree to the increase sought. Correspondence tendered by Ms Turner indicates that the respondent considered her request thoughtfully and without any apparent disregard for her claims but in the end it did not accede to her request.
What is required for there to be a case to answer?
43 Section 47 of the SAT Act provides that, if the Tribunal believes that a proceeding is:
(a) frivolous, vexatious, misconceived or lacking in substance;
(b) being used for an improper purpose; or
(c) otherwise an abuse of process,
it may order the proceedings be dismissed or struck out and may make appropriate orders. The power may be exercised on the application of a party or on the Tribunal's own initiative: s 47 SAT Act.
44 The power to summarily terminate an action must be used sparingly. The High Court has said that a case must be:
"[V]ery clear indeed to justify the summary intervention of a court to prevent a plaintiff submitting his case for determination
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- in the appointed manner by the court with or without a jury … once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." (Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91)
45 The power must be exercised with "exceptional caution": Paramasivan v Grant [2001] FMCA 882, applying General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129. This is so, particularly when the applicant is unrepresented: Chung v University of Sydney [2001] FMCA 94, upheld on appeal in Chung v University of Sydney [2002] FCA 186.
46 In Rana v University of South Australia [2004] FCA 559, Lander J, allowing an appeal against the summary dismissal of an application, noted that:
"[The] philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim."
47 The test is not whether the applicant, on the Tribunal hearing both sides of the argument, would succeed; nor is it a test of whether or not the claim has merit, but whether it "fail[s] to disclose a reasonable cause of action": Paramasivan v Grant (above).
48 The test to be applied was described by Barwick CJ in General Steel Industries Inc v Commissioner for Railways(NSW) as follows:
"The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
…
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- Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." (at 130)
Reasons for decision
49 We are mindful that Ms Turner is represented by her husband who, although having some knowledge of discrimination law and principles, is not a lawyer. We recognise that allowances must be made especially where one party has legal representation and the other does not. Further, while the applicant bears the onus of proof in the substantive proceedings, it is not enough for the Tribunal simply to confine itself to the evidence presented by the applicant: it must satisfy itself that a case is made out. For the reasons set out below, we are not satisfied on the evidence before us, that Ms Turner has made out an arguable case.
50 It appears that, relative to Mr Hunter, Ms Turner worked harder, and at a higher level of skill, than he did; his shortcomings were recognised in that Mr Campbell and the team worked around him; he was paid for duties that he did not perform, or performed very ordinarily. It is not surprising that Ms Turner felt aggrieved by the inequity in her pay as compared with that of Mr Hunter. However, it is by no means clear that, considered generally, her treatment was indeed less favourable. By January 2004, not far into the relevant period, Mr Hunter's position had been made redundant; he had been offered a position at a lower salary; he had declined and received a redundancy payout. In contrast, Ms Turner had received a salary increase some level higher than the average increase employees received at that time, and she maintained her job.
51 Nothing in the evidence we have heard so far could support a finding that Ms Turner and Mr Hunter were in the "same" or "not materially different" circumstances. The evidence is that their different roles and duties were different as reflected in their different classifications, different salaries and matters such as that Mr Hunter had his own office. The fact that Mr Hunter appears to have been allowed to perform lower level duties but still receive the same pay, indicates that, as happens in some workplaces, he was not being managed but was being worked around. In the context of the restructure, that may not be surprising. It may not be fair, but it does not disclose an arguable case of less favourable treatment within the meaning of the Act.
52 Nothing in the evidence before us supports Ms Turner's assertion that sex was a factor in any different treatment between herself and Mr Hunter. Ms Turner's own witness, Mr Campbell, made clear that sex had nothing
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- to do with what he acknowledged was an inequitable situation. According to him, the situation would have been no different had it involved two men, two women, or a man and a woman. Mr Campbell was aware of equal opportunity and anti-discrimination legislation and of his responsibilities under such legislation as a manager. The Tribunal found him to be a thoughtful and credible witness and accepts his evidence.
53 We have considered whether anything in the atmosphere or culture of Maunsell's might have engendered a workplace in which women were discriminated against in subtle ways. Ms Turner submits, in effect, that because it was male dominated it was thereby sexist. It is true that almost all the women were in administrative roles and the overwhelming majority of engineers, draftspersons and senior managers were men. As in many workplaces, the administrative staff often felt undervalued. It is not impossible that sexism operated on occasions in subtle ways. However, nothing in the evidence before us suggests it was an explanation for any inequitable treatment.
54 It was Mr Murrell's submission on Ms Turner's behalf that, in a male-dominated workplace, there could be no other explanation for what she considered unfavourable treatment than her sex. Her case is, in effect:
• Maunsell is (or was at the relevant time) a male-dominated workplace;
• The workplace was therefore necessarily sexist;
• Ms Turner performed at a higher level and received less pay than Mr Hunter; and
• The only possible explanation for this less favourable treatment is her sex.
55 We are mindful of the need to satisfy ourselves that there is no arguable case and to not limit ourselves to arguments put forward by Ms Turner. It seems to us, however, that Ms Turner has failed to appreciate that merely making assertions does not amount to evidence of her claims.
56 Ms Turner has been on notice for nearly 12 months that, firstly the Commissioner, and then the respondent, were of the view that her complaint lacked substance. The Commissioner's letter of 23 March 2005 outlined in some detail why she considered the complaint lacked substance, and the matters which Ms Turner had failed to demonstrate. These proceedings are in the Tribunal's original jurisdiction and we are not bound in any way by the Commissioner's view of the complaint; we
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- attach no weight to it for the purposes of determining this application. However, the Commissioner's decision is relevant because it goes to the fact that Ms Turner has been on notice since before her complaint was referred to the Tribunal that the Commissioner, at least, considered her complaint not made out. Further, the respondent's written submissions filed and served on 30 September 2005 set out in detail the grounds on which the respondent maintained that the complaint lacked substance, and pointed to what the respondent considered were deficiencies in supporting evidence. Those matters go directly to the facts which Ms Turner must establish: that she suffered less favourable treatment than a person in same or similar circumstances and that that treatment was on the ground of her sex. Despite being on notice of the deficiencies in her case and in her evidence, Ms Turner has failed to produce any evidence to support a finding of unlawful discrimination.
Conclusion
57 We are not satisfied that anything in the evidence before us raises a case which the respondent must answer. Ms Turner has not provided any evidence which might support her claims. She has had the opportunity to present her case in full to the Tribunal. Even if we were to allow that she received less favourable treatment than Mr Hunter, the evidence does not disclose an arguable case that he was in the same or not materially different circumstances. Moreover, the evidence establishes that her sex was not a factor in any less favourable treatment.
58 We accept the respondent's argument that the case presented by Ms Turner discloses no reasonable cause of argument. Nothing would be served by requiring the respondent to present evidence to refute her case.
Orders
59 The Tribunal orders that:
1) the application be struck out pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) on the ground that it is lacking in substance; and
2) the application is dismissed.
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- I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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