Yang v Langs Building Suppliers Pty Ltd

[2018] FCCA 3203

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG v LANGS BUILDING SUPPLIERS PTY LTD [2018] FCCA 3203

Catchwords:
INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – workplace rights – adverse action – dismissal.

INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – other protections – adverse action – alleged racial discrimination in training and dismissal.

Legislation:

Fair Work Act 2009 (Cth), ss.340(1)(a)(i), 342, 351, 360, 361

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No.1] (2012) 248 CLR 500
CFMEU v Pilbara Iron Co (Services) Pty Ltd (No.3) [2012] FCA 697
Hodkinson v Commonwealth [2011] FMCA 171
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Tattsbet Ltd v Morrow [2015] FCAFC 62

Applicant: HIAYAN YANG

Respondent: LANGS BUILDING SUPPLIERS PTY LTD

File Number: BRG 874 of 2016

Judgment of: Judge Jarrett

Hearing date: 19 May 2017

Delivered at: Brisbane

Delivered on: 7 November 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr S A Mackie

Solicitors for the Respondent: K & L Gates

ORDERS

1. The application filed on 22 September, 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 874 of 2016

HIAYAN YANG

Applicant

And

LANGS BUILDING SUPPLIERS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. Ms Yang seeks compensation and other relief for alleged contraventions of s.340(1)(a)(i) of the Fair Work Act 2009 (Cth) for adverse action by the respondent in:

   a)discriminating between Ms Yang and other employees of Langs on the basis of her race; and

   b)terminating her employment, because of her race.

2. Langs denies that race played any part in its decision-making process concerning Ms Yang. In particular, it denies any contravention of s.351 of the Fair Work Act on the basis that:

   a)the training that Langs provided to Ms Yang was appropriate and not discriminatory; and

   b)Ms Yang was dismissed because the decision maker (Mark Price, windows manager) was put in a position where he needed to choose between retaining Ms Yang or another employee, Ms Suzy Stone.  Langs claims that Mr Price selected Ms Stone because her performance was better and because of concerns about Ms Yang’s behaviour and commitment to the role. 

Agreed facts

1. The parties appear to agree on the following factual matters:

   a)Langs manufactures and sells windows and screens. It manufactures the windows on site;

   b)Ms Yang was employed as an estimator by Langs, commencing on 23 May, 2016.  Her job was to prepare estimates on the cost of manufacturing windows.  The advertisement for the job required “a comprehensive knowledge of all current Standards & Codes relevant to aluminium windows construction in Queensland”;

   c)her job required her to read building plans, determine what products were being requested, and then enter the products into the respondent’s estimating software, commonly called “V6”;

   d)Ms Yang had not previously worked in Australia, or in preparing windows estimates.  Six years previously she had worked in China in building and construction, but “it was mainly reinforced concrete”.  She had “no windows specific experience”, as normally windows estimating was done by the subcontractors.

   e)English is not Ms Yang’s first language;

   f)Ms Yang was employed by Mr Price on 23 May, 2016 following an interview with Mr Price and then a brief discussion with Neil Whinton, General Manager – Fabrication;

   g)Ms Yang needed training in order to perform her job.  Her training was predominantly provided by Mr Williams, although she could (and did) ask questions of other estimators;

   h)on the week of 20 June, 2016 Mr Brian Little, who was known to and worked with Ms Yang, was on annual leave;

   i)on the week of 20 June, 2016 Ms Suzy Stone was relocated from the factory floor to working as an estimator with Ms Yang.  The intention was that she would return to the factory floor when Mr Little returned from annual leave on Monday 27 June, 2016;

   j)Mr Williams trained Ms Stone in her work;

   k)Ms Stone completed estimates for complex jobs in the week of 20 June, 2016;

   l)on 24 June, 2016 Mr Price was made aware of an estimate provided to a customer of Langs that contained an error.  The estimate in question stated that it was prepared by Ms Yang.  Ms Yang was asked to have “a look at it”.  She was not asked to explain the error, but proceeded to explain that she was not responsible for it. This conversation resulted in Ms Yang becoming very upset;

   m)in the afternoon of 24 June, 2016 Mr Price informed Ms Yang that he would have to “let her go” because he could not keep both her and Ms Stone.  She was dismissed with one week’s pay in lieu of notice.

The legislative framework

1. Langs’ submissions conveniently set out the relevant legal background.

2. Section 351 of the Fair Work Act relevantly states that an employer must not take adverse action against an employee because of their race.

3. In accordance with Tattsbet Ltd v Morrow [2015] FCAFC 62 at [119], this means that:

   a)Ms Yang bears the onus of establishing that adverse action has taken place; and

   b)once she has discharged that onus, Langs bears the onus of establishing that it did not take adverse action because of a prohibited reason.

4. Adverse action is defined in s.342 of the Fair Work Act. Relevantly, it will have occurred where an employer dismisses an employee or where the employer discriminates between the employee and other employees of the employer (s.342(1) item 1(d)).

5. Ms Yang submits that for present purposes the meaning of discriminates in s.342 is treat less favourably: CFMEU v Pilbara Iron Co (Services) Pty Ltd (No.3) [2012] FCA 697 at [39]-[44], where the issue is discussed. In present circumstances Ms Yang alleges that she was treated less favourably than Ms Stone. If she were not, then there would be no discrimination between Ms Yang and other employees of Langs.

6. Langs admits that, if Ms Yang’s race, colour or national extraction were substantial and operative reasons for her dismissal, then this would contravene s.351.

7. However, it does not follow, as Ms Yang alleges, that s.351 is also contravened if adverse action is taken because of a characteristic that appertains to her race.  The definitions of discrimination in the various discrimination acts do not apply to s.351: Hodkinson v Commonwealth [2011] FMCA 171 at [138]-[143], approved in RailPro Services Pty Ltd v Flavel[2015] FCA 504 at [114].

8. Section 351 extends to race, colour and national extraction.  It does not extend to language, subject to my comments below.

9. Once adverse action has been established, it falls to Langs to show that they did not take adverse action because of Ms Yang’s race within the meaning of s.351.

10. The way in which a respondent may discharge its onus has been the subject of several High Court decisions, most significantly Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No.1] (2012) 248 CLR 500, in which French CJ and Crennan J offered the following overview at [44]-[45]:

    …The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.

    This question is one of fact, which must be answered in the light of all the facts established in the proceeding…Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (footnotes omitted)

11. Langs submits that the immediate practical effect of ss.360 and 361 and the above passage are that the questions for this Court are:

    a)is the evidence of the decision maker reliable?

    b)if not, is the Court in any event satisfied that the reasons for the decision did not include, as a substantial and operative factor, Ms Yang’s race?

12. I accept that if the answer to either question is “yes”, then the application will fail.

The evidence

1. In addition to her application and supporting Form 2, Ms Yang relies upon her affidavits made on 24 November, 2016 and 12 January, 2017.  She was cross-examined on those affidavits at the trial of this matter on 19 May, 2017.

2. Langs relies upon the following evidence:

   a)the affidavit of Neil Whinton made on 20 December, 2016;

   b)the affidavit of Steve Williams made on 20 December, 2016;

   c)the affidavit of Geoff Gordon made on 20 December, 2016; and

   d)the affidavit of Mark Price made on 20 December, 2016.

3. I also received the following exhibits:

   a)Exhibit A – photography of Ms Stone;

   b)Exhibit B – leave application form for Mr Little;

   c)Exhibit 1 – annual leave application form for Mr Little for the period Monday, 20 June to Friday, 24 June

   d)Exhibit 2 – bundle of job applications.

4. All of Langs’ witnesses were cross-examined on their affidavits.

Consideration

1. Ms Yang was self-represented in these proceedings, which placed her at a disadvantage.  Langs, on the other hand, was represented by solicitors and counsel, whose submissions appropriately identify the relevant issues.

Adverse action

1. It appears from her material that Ms Yang alleges two forms of adverse action:

   a)she was discriminated against in respect of her training because the training she received was materially different than that provided to Ms Stone in terms of:

   i)time spent training;

   ii)specificity of feedback; and

   iii)content of training; and

   b)she was dismissed.

2. There is no doubt that Ms Yang was dismissed from her employment, which constituted adverse action but Langs denies that the dismissal was for a prohibited reason.  Langs further denies that Ms Yang was discriminated against in respect of her training. 

3. Ms Yang’s evidence regarding her training appears to be that:

   a)she was given half a day of training on the first day, a knowledge folder in the first few days, and was brought down to the showroom (and presumably the factory) on a few occasions.  She was also taught additional matters “sometimes”.  Ms Stone, in comparison, was given more.  Ms Yang appears to claim that it was two-three days of training.  Ms Stone’s training did not begin until 4:00pm on her first day, and on the second day Ms Stone started at lunch time;

   b)Mr Williams corrected Ms Yang’s work by fixing her errors in Langs’ V6 system, while Mr Williams told Ms Stone what errors she made; and

   c)Mr Williams did not teach Ms Yang complex matters despite her being able to learn them, but did teach Ms Stone complex matters despite Ms Stone having less skills than Ms Yang (and so presumably unable to learn complex matters without considerable time investment from Mr Williams);

4. Against this, Langs refers primarily to the evidence of Mr Williams, who states that:

   a)he spent more time training Ms Yang than Ms Stone, not less;

   b)he normally provided Ms Yang with written, specific feedback.  At times he may not have, but this would be because he needed to complete the quote in question quickly.  Further, Ms Yang could still see what changes he made by comparing her version to his;

   c)he taught both Ms Stone and Ms Yang information that was appropriate to their knowledge.  He taught Ms Stone more complex matters because she had a higher knowledge base, and Ms Yang more simple matters because her knowledge was less and because she was having trouble absorbing the concepts that he was teaching her.

5. Langs submits that the Court should accept Mr Williams’ evidence in preference to Ms Yang’s because:

   a)there was no reason for Mr Williams to refuse to train Ms Yang.  Both Mr Price and Mr Williams state that Mr Williams stated that he would resign due to the high workload of the business.  Ms Yang states that she was told that Mr Williams threatened to resign due to stress.  As Mr Williams states, it was in his interests to train Ms Yang;

   b)Mr Price also gives evidence that he “regularly saw Mr Williams showing Ms Yang how to do various things”;

   c)Mr Williams believed that Ms Stone would return to the factory on Monday, 27 June, 2016.  He would therefore have no reason to spend the alleged two to three days training Ms Stone, especially considering Mr Williams’ own workload.  If Ms Yang’s evidence were correct, this would mean that Mr Williams was continuing to train Ms Stone right up to approximately midday on her last day in the estimating department;

   d)Ms Yang’s own documentation shows specific handwritten comments from Mr Williams regarding her work.  The example Ms Yang gives of amendments being entered into the system is version 10.  This suggests that Ms Yang had already been provided with feedback nine times.  If, as Ms Yang suggested, Mr Williams corrected her work and sent it off, then her estimates would only have two or three versions;

   e)it would, in any event, be a simple matter to compare two printed quotes.  Compare, for example, versions 10 and 13 of the estimates at annexure 10 in Ms Yang’s affidavit filed on 24 November, 2016.  It is a simple matter to see, for example, that item 4 has been inserted, and the type of glass in the (new) item 5 has changed;

   f)the following factors support Mr William’s evidence regarding Ms Stone’s higher base level of knowledge:

   i)Ms Stone had knowledge Ms Yang did not have.  Ms Stone made Langs’ products, and so would know both the products available and the types of glass used.  Ms Yang admits that this would be an advantage;

   ii)Ms Yang cannot give direct evidence about the quality of Ms Stone’s work.  She did not supervise or otherwise directly interact with her.  Mr Williams did.  Ms Yang admits that she could only hear “some sentences” exchanged between Mr Williams and Ms Stone;

   iii)the mere fact that Ms Yang heard the words “east elevation” and “south elevation” said does not mean that Ms Stone was unable to read plans.  Ms Yang was not part of those conversations and would not know the context in which those words were used.  As noted above, Ms Yang could not hear the entire conversation;

   iv)if Ms Yang’s evidence is accepted, then Ms Stone would have been unable to do anything at all until her training started at 4:00pm on Monday, 20 June 2016.  It is unlikely that either Langs or Ms Stone would have allowed that situation to develop;

   v)Ms Yang admits that Ms Stone was preparing complex quotes.  It is unlikely that Ms Stone could prepare complex quotes within one week of starting work without appropriate base knowledge;

   vi)there would be no reason for Mr Williams to lie to Mr Price regarding his assessment of Ms Stone’s work; and

   vii)Mr Price gives evidence that he observed Mr Williams’ stress visibly decrease once Ms Stone began assisting him work through the backlog.

6. The following factors are said to support Mr William’s evidence regarding Ms Yang’s lower base level of knowledge:

   a)Ms Yang had no experience with windows, or with building and construction in Australia.  Her prior experience primarily involved concrete;

   b)the high version numbers on Ms Yang’s estimates suggest that Ms Yang did not understand the matters she was being taught;

   c)by way of example, Ms Yang states that she did not know what a “motif” was, despite it being included in item 7 of her estimate at annexure 10 of Ms Yang’s affidavit filed on 24 November, 2016;

   d)Ms Yang appears to have had several impediments that would have affected her learning, aside from any language barrier.  She appears to have been anxious, erratic and suspicious.  She was constantly tired, was developing eye strain after only three days and states that she received five emergency phone calls on 24 June, 2016; and

   e)Mr Price gives evidence that he regularly saw Mr Williams training Ms Yang, and that he was visibly frustrated.

7. There is force in those submissions.  Ms Yang had a Bachelor degree of Construction Management and a Certificate IV in Building Construction.  Prior to coming to Australia, Ms Yang worked in Shanghai as a construction estimator (quantity surveyor) for six years.  She had broad experience as an estimator in commercial and residential high rise building and medium rise building.

8. Despite her experience and qualifications, Ms Yang found it was not easy to obtain employment in Australia as an estimator for various reasons.  She started her own business in August, 2014.

9. On 9 May, 2016 Mr Price called Ms Yang and invited her to an interview.  Ms Yang attended an interview the next day with Mr Price.  At her interview, Mr Price told Ms Yang that he would give her training if she worked for Langs.  There was a discussion between Ms Yang and Mr Price about what needed to be done if Ms Yang was to work for Langs.  Ms Yang agreed to undertake a psychometric test.  Mr Price invited Ms Yang to a second interview, at which time Ms Yang met Mr Whinton.

10. Ms Yang had not previously worked as an estimator in Australia.  Nevertheless, and no doubt having regard to her qualifications and experience in China, as well as her initial presentation, Langs offered Ms Yang employment, which she accepted.  She acknowledges receiving half a day of training and being given simple window estimating tasks.  Ms Yang had to use software which she says she found easy.  Ms Yang regards that training as wholly inadequate.  She asserts that she was inadequately supervised.  She asserts that Ms Stone, who was engaged after Ms Yang, was given preference. 

11. There is no doubt from the evidence that Langs did prefer Ms Stone to Ms Yang.  I am not persuaded, however, that that preference had anything to do with Ms Yang’s race.  The evidence of Mr Williams and Mr Price proves that this was a workplace under pressure.  Ms Stone appeared to be quicker on the uptake than Ms Yang and, in a high pressure environment, it is understandable that a preference might be shown to an employee who appeared to demonstrate a higher trajectory in the workplace.

12. I also accept from the evidence that Ms Stone came to the workplace with a higher level of base knowledge than Ms Yang.

13. I find that there was no unlawful discrimination in the training of Ms Yang.

The dismissal

1. As stated above, Langs bears the onus for establishing that Ms Yang’s race was not a substantial and operative reason for her dismissal.

2. The evidence of Mr Price is that he dismissed Ms Yang for the following reasons:

   a)he had to choose between keeping Ms Yang or Ms Stone in the estimating department.  He could not keep both;

   b)Ms Stone’s performance was superior to Ms Yang’s; and

   c)Mr Price was concerned with Ms Yang’s professional conduct, particularly her reaction to criticism.

3. Against this, Ms Yang states as follows:

   a)Ms Yang implies that the real reason for her dismissal was that Mr Williams was angry that another estimator, Mr Eli Kelly, was going to loan Ms Yang a book, and so demanded that Mr Price dismiss Ms Yang. There is no apparent reason for Mr Williams to behave in this way, or for Mr Williams and Mr Price to conceal it. If this were the real reason for the dismissal, it still would not contravene s.351;

   b)Ms Yang also states that Mr Price stated that the “real reason” for her dismissal was her relative lack of proficiency in English, although she claims that he also said that her English was good in the same conversation; and

   c)Ms Yang denies that Ms Stone’s performance was superior to hers.

1. The issue for the Court, of course, is not whether Mr Price’s beliefs were correct, but whether he genuinely held them.

2. Langs submits that the Court should accept Mr Price’s evidence for the following reasons:

   a)Mr Whitton confirms that Mr Price was not allowed to expand the number of estimators.  He therefore was faced with the choice between Ms Stone and Ms Yang;

   b)Mr Price would have no reason to doubt Mr Williams’ assessment of the comparative performance of Ms Stone and Ms Yang.  It matched his own perceptions.  Langs also repeats and relies upon the information above regarding the comparative skill base of Ms Stone and Ms Yang;

   c)even on her version of events, Ms Yang’s reaction to the “Ruby Developments” error on 24 June, 2016 was both extreme and inappropriate.  She was asked only to “look at” the error.  She was not accused of making it, or asked to explain it; and

   d)Langs also submits that even if the “real reason” was Ms Yang’s English language proficiency (which it denies), this is not “race” for the purposes of s.351, as discussed above.

3. I accept that race did not play a part in the dismissal of Ms Yang.  There is some tension between evidence of Mr Price about his reasons for the dismissal and the reason that was placed on the separation certificate provided to Ms Yang.  The separation certificate indicated that Ms Yang had been found to be “unsuitable” for the work in which she was engaged.  The other evidence by Mr Price was that it was not so much a case of unsuitability as relative suitability as between Ms Yang and Ms Stone, in circumstances where the business had to choose between them.

4. I accept Langs’ contention that the real reason for the termination of Ms Yang’s employment was Mr Price’s assessment of the relative suitability of Ms Yang and Ms Stone.  I do not rule out the possibility that Mr Price’s assessment was influenced by Ms Yang’s reaction to criticism and the fact that English is her second language.  Personality is not an attribute of race.  Language may be but is not necessarily a racial attribute.  Many persons of European background do not speak English well, or at all.  Many people of Asian background have a very high level of English language proficiency.  Further, and consistently with Langs’ submissions, I accept that for the purposes of these proceedings, her English language ability was not an attribute of her race.

5. The bottom line here is that the business had to choose between two employees and made a decision based upon Mr Price’s assessment of their relative worth to the business. 

6. I find that Langs has discharged its onus of establishing that the dismissal of Ms Yang was not for a prohibited reason. 

Conclusion

1. I conclude that Ms Yang has failed to establish either element of her claim against Langs.  I will order that her application be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  7 November 2018