Zareski v Hannanprint Pty Ltd

[2011] NSWADT 283

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Zareski v Hannanprint Pty Ltd [2011] NSWADT 283

Hearing dates:

24, 25 and 26th of August 2011

Decision date:

05 December 2011

Jurisdiction:

Equal Opportunity Division

Before:

A Scahill, Judicial member
E Hayes, Non-judicial member
M Nasir, Non-judicial member

Decision:

1. The complaint of discrimination in relation to harassment on the grounds of carers' responsibilities is dismissed.

2. The complaint of discrimination in relation to harassment on the grounds of disability is dismissed.

3. The complaint of discrimination in relation to harassment on the grounds of race concerning the graffiti on the Applicant's locker is dismissed.

4. The complaint of victimisation is substantiated in so far as Mr Dixon's comments to the Applicant in January 2011 are concerned. The balance of victimisation complaints is dismissed.

5. The Tribunal orders that the Respondent undertake training of its managers and supervisors in relation to dealing with workplace complaints. The human resources staff should attend together with the managers and supervisors. The Respondent is invited to present a proposal to the Tribunal setting out how it proposes to do this including the number and length of sessions and the subject matter to be dealt with for approval by the Tribunal. This proposal should be put to the Tribunal within 28 days of these orders. The Tribunal will seek the Applicant's view of this proposal.

6. The Respondent is to pay the Applicant an amount of $ 5000 in respect of the Applicant's hurt feelings as a result of the victimisation.

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Carter v. Brown [2010] NSWADT 109
Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP.)
Elliott v Nanda & Commonwealth (2001) 111 FCR 240
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
O'Callaghan v Loder (1984) EOC 92-023

Category:

Principal judgment

Parties:

Vasko Zareski (Applicant)
Hannanprint Pty Ltd (Respondent)

Representation:

Counsel
E Raper (Respondent)
Bankstown Legal (Applicant)
Minter Ellison (Respondent)

File Number(s):

101116

REasons for decision

1. The Applicant complained to the Anti Discrimination Board (ADB) by letter from his solicitor dated 7 January 2010 that he had been discriminated against on the grounds of his race, his presumed disability and his carer's responsibilities in employment by the Respondent. He also complained of victimisation at that time. He added a second complaint of victimisation by letter dated 28 January 2011 to the Administrative Decisions Tribunal.

1. The Applicant, Mr. Zareski had worked as a general hand for the Respondent, Hannanprint Pty Ltd since 1993. His complaint to the Anti Discrimination Board appears to stem largely from events occurring in his employment between March and December 2009.

Summary of Complaints

1. The Tribunal understands the complaints to be set out in the Applicant's solicitor's letters of 7 January 2010 and 17 February 2010 to the Anti Discrimination Board, a letter dated 28 January 2011 to the Administrative Decisions Tribunal (ADT) and a document headed Points of Claim by the Applicant.

1. The Tribunal understands that the Applicant's complaints of carer's responsibilities, disability and race discrimination are all complaints of harassment in the workplace on these grounds.

Discrimination on the ground of Race

1. The Applicant alleges that he was discriminated against on the grounds of his race in that graffiti relating to his race was written on his locker and that after he complained to management about it in November 2009 the graffiti was not removed until mid February 2010.

Discrimination on the ground of Presumed Disability

1. The Applicant alleges that he was discriminated against on the grounds of his presumed disability in that on the 6 November 2009 other workers and supervisors came to believe that he had cancer. Thereafter the Applicant alleges that other workers and supervisors celebrated his imminent death in what became known as the alleged "Cancer Party" and the "Grim Reaper" incidents.

Discrimination on the ground of Responsibilities as a Carer

1. The Applicant alleges that he was discriminated against on the grounds of his responsibilities as a carer in two respects. First the Applicant alleges that his Team Leader Mr Grant Dixon discriminated against him on the grounds of his responsibilities as a carer when Mr Dixon mimicked a plane crashing when the Applicant was about to fly to Serbia on holidays with his children on or around 14 May 2009.

1. Second, he says that there was an incident on 6 November 2009 in which his supervisor, Craig Phillips, made a scythe and imitated the Grim Reaper when it was believed the Applicant may have cancer. The Applicant had cared for his wife until her death from cancer in 2006 and considered that this incident alluded to his role as the carer for his deceased wife.

Victimisation

1. The Applicant alleges that after he made his complaint to the Anti Discrimination Board in January 2010 his employer victimised him in 4 ways.

1. First Mr Dixon continued to harass him and refer to him as "stinky", telling him to shower.

1. Second his employer did not initiate any discrimination training of supervisors.

1. Third his employer took a harsher approach in a disciplinary matter to him than it did to his supervisors in similar circumstances.

1. Fourth his employer allowed his supervisor Mr Dixon to become aware of confidential negotiations concerning his complaint, whereupon Mr Dixon spoke to him and ridiculed him about the negotiations.

Procedure of Hearing.

1. The hearing proceeded by way of affidavit and cross examination of witnesses. The Applicant was cross examined - followed by Mr Nunez. The Respondent witnesses, Mr Dimovski, Ms Denton, Mr Phillips, Mr Poulter, Mr Dixon and Mr Nubley were all cross examined.

The Applicant's evidence

1. The Applicant gave evidence that he had been born in Serbia and he had been working as a general hand in the bindery department at Hannanprint Pty Ltd since 1994. He was supervised for half of the time by team leader Craig Phillips and supervisor Grant Dixon and the balance of time by Brett Hill. He had no difficulties with Brett Hill. He said that Craig Phillips and Grant Dixon frequently referred to him as moron, an imbecile, a peasant and a bloody wog.

1. The Applicant was consistent in his account of what had occurred. His allegations referred to a number of specific incidents.

• on 4 March 2009 he was told to have a shower by Craig Phillips his team leader "because you stink".
• On 14 May 2009 he alleges that Grant Dixon referred to the Applicant's forthcoming holiday to Serbia with his children and made motions indicating a plane falling out of the sky;. saying "I hope your plane falls out of the sky."

1. The Applicant says that when he responded

"My children are coming with me they've got nothing to do with anything" Grant Dixon responded "I don't care."

• In October 2009 the Applicant alleges that Craig Phillips told him "you stink" and "you need to shower".
• Grant Dixon had offered him overtime work and then retracted it

Alleged Cancer Party and Grim Reaper Events

1. On 6 November 2009 he had arrived at work in the morning and suffered an attack of diarrhoea. After he had exited the toilet, Mr Dimovski had said that there was blood in the toilet and that this might indicate that he, the Applicant, had cancer. The Applicant alleges that thereafter Messrs Dixon, Poulter and Phillips celebrated his imminent demise from cancer and that these celebrations around machines he was working on were repeated at 10:15 am and 12.15 pm. He then alleges that Mr Phillips fashioned a scythe from materials around the factory and taunted him as the Grim Reaper - telling him he would die. These two incidents are referred to as the "Cancer Party" and the "Grim Reaper" event.

Graffiti on locker

1. In November 2009 the Applicant complained to his employer that his locker had been painted with racist symbols in order to harass him on the grounds of his race. He alleges that he saw Brett Poulter writing on his locker "you smell like shit" but he did not know who wrote the other symbols on his locker. He said he complained to his employer and that the locker area was inspected on 14 December 2009 by a representative of the Respondent's Workers Compensation insurer and a staff member. However the Respondent did not remove the graffiti from his locker until around the 15th February 2010.The Applicant alleges that the Respondent did not take adequate steps to prevent or manage the discrimination and harassment that he received from other employees.

Allegations about victimisation

1. The Applicant outlined several events which he considered were victimisation of him consequent upon his complaints of discrimination.

1. The Applicant agreed that he had sent a mobile telephone text to Mr Dimovski telling him that he, Mr Dimovski, would go to gaol for perjury and reminding him of his moral duty to tell the truth about the Cancer Party event. The Applicant was given a misconduct warning by the Respondent. The Applicant considered this an example of victimisation consequent upon his complaints.

• after he complained to the Anti Discrimination Board in January 2010 he was subjected to victimisation by his supervisors who continued their harassment of him and that the Respondent did not take adequate steps to prevent this.
• in January 2011 Grant Dixon approached him and harassed him in relation to his Anti Discrimination Board complaint, commenting on the amount of money that the Applicant had sought and ridiculing him about the complaint.

Evidence of Mr. Nunez

1. Mr Nunez gave evidence that he had been employed by the Respondent since August 2003 in the bindery department and that he was also a union delegate. Mr Nunez expressed the opinion that the supervisor Mr Dixon allocated overtime work only to people he liked. He had seen Mr Dixon cover his face with his shirt while speaking with the Applicant during 2009 as if to protect himself from a bad smell. He was also aware of Mr Poulter collecting a petition in November 2009 complaining about the Applicant's body odour. He had seen Brett Poulter approaching the Applicant and yell "you stink". He also recalled seeing a swastika painted on the Applicant's locker before November 2009 and then seeing more writing appear on the locker saying "you stink like shit" later in November 2009. Mr Nunez recalled that the locker was not cleaned until mid February 2010.

Evidence of Johnny Dimovski

1. Mr Dimovski gave evidence that he was from a Macedonian background. He said that he and the Applicant would refer to their respective Macedonian and Serbian origins. He said that he spoke a little bit of the Serbian language - but more of the Macedonian language. He and the Applicant would speak in Macedonian, Serbian and English languages. The Tribunal understood that inherent in this was the difficult relationships between people from the former Yugoslavia which had split into warring states. On a personal level, he had what the Tribunal would describe as a mixed relationship with the Applicant - at times friendly and at times in conflict. On the morning of 6 November 2009 he noticed that there was blood in the toilet he asked several workmates including Mr. Poulter , Mr Basi, Mr. Phillips and Mr. Dixon to come and have a look at the situation. He said that he had seen the Applicant come out of the toilet block 2 to 3 minutes earlier. He asked the Applicant if he was all right and why there had been blood in the toilet. Mr. Dimovski then indicated that he had walked back to his machine and he saw no further of the alleged events that day. He said that he had received a text message from the Applicant in the following days asking him to provide evidence of what he had seen occurring, indicating that he, the Applicant, would share any money he obtained from Hannanprint with him. He had complained to management about the threatening nature of the text message.

Evidence of Paula Denton

1. Ms Denton was employed as senior human resources officer with Hannanprint and, reported to Mr Nubley, the manager of human resources. While Mr Nubley was on leave in November 2009 she had received a complaint from the Applicant. That complaint included allegations about

• Mr Dixon expressing the hope that the Applicant's plane would crash on his forthcoming holiday in Serbia with his children; Mr Dixon calling him stinky;
• the Cancer Party and the Grim Reaper incidents on 6 November 2009;
• that Mr Dixon had cancelled his overtime work.

1. Ms Denton asked the Applicant to go on paid leave while she investigated his complaint.

1. The Applicant later complained to her that when he came to work on Monday 9 November, the Monday after the Grim Reaper event, that another employee, Brett Poulter had also told him that he was going to die.

1. Ms Denton investigated the complaints and attended a meeting on 25 November 2009 at which Mr Phillips apologised to the Applicant for the Grim Reaper event. Ms Denton confirmed that whenever the Applicant made complaints to human resources that they were investigated and that the first time that she became aware of any difficulties for the Applicant was in November 2009 when she investigated his complaint. Ms Denton indicated that she was aware of the graffiti on the Applicant's locker because she had attended on 14 December 2009 with the insurance investigator. However she had no further involvement in the matter as it was dealt with by Mr Nubley.

Evidence of Craig Phillips

1. Mr Phillips had worked for the Respondent since March 2003; he was presently in the position of supervisor, manufacturing and reporting to Brett Hill from Sunday to Tuesday and to Grant Dixon from Wednesday to Friday. He manages all employees in the bindery department from 6.00 a.m to 2:30p.m daily. Mr Phillips had observed the Applicant to greet Mr Dixon regularly with a Nazi salute and to refer to Mr Dixon as "Aussie pig" or "Aussie dog." He said that the Applicant would often say "all Jews should die" and that after the Bali bombings the Applicant celebrated the victims' deaths saying "more Americans should have died". Mr Phillips denied having referred to the Applicant as a "moron", an "imbecile", "peasant" or a "bloody wog". He indicated that he had witnessed the Applicant using these words when talking to other staff. He denied having referred to the Applicant as "stinky" or telling him that "you stink". Mr Phillips did however say that he had received complaints from other staff that the Applicant had unpleasant body odour. He had complained himself to Mr Dixon in October 2009 about the Applicant's body odour. Together with Mr Dixon he had approached the Applicant on 9 October 2009 to advise the Applicant about body odour complaints and asked him to have a shower and put on deodorant. Mr Phillips said that as a result of this after the Applicant came out of the toilets, the Applicant said to him "I'll kill you" and "you will die like a dog" and "I am going to sue HannanPrint and you personally."

1. Mr Phillips denied having observed the Cancer Party on 6 November 2009, but admitted to the Grim Reaper incident. He acknowledged having apologised to the Applicant at the meeting of 25 November 2009 and of having received a warning letter from the Respondent as aresult of the Grim Reaper incident. He said that the Grim Reaper incident was payback for the incident in October 2009 when the Applicant had abused him after he had asked him to have a shower and put on deodorant. Mr Phillips indicated that he had heard the Applicant saying that he was going to make money out of suing the company for his treatment. Mr Phillips said he was not aware of any graffiti on the Applicant's locker until around December 2009 when he was called down to inspect it together with Ms Denton and the Workers Compensation insurer. Mr Phillips denied that the Applicant had been treated less favourably by being denied overtime by Mr Dixon.

Evidence of Brett Poulter

1. Mr Poulter is a tradesman -- binder and finisher, reporting to Brett Hill and Grant Dixon. He had worked for the Respondent on and off since 1997. He said that he had attended sexual harassment and bullying training in 2002. He had always been aware that the Applicant had a body odour problem and had said to the Applicant on several occasions "go and have a shower." He had complained to his managers Mr Dixon and Mr Phillips about the Applicant's body odour. He had heard the Applicant commenting about Americans and Jews and saying "Hitler was a good man". He had been present at the time of the toilet incident on 6 November 2009 and had overheard a conversation between Mr Dimovski and the Applicant about the blood in the toilet and the concern that the Applicant may have cancer. Mr Poulter said that he heard the Applicant say "No I am Serbian, I am strong." He denied having participated in the Cancer Party or having observed anyone else to have done so. Mr Poulter said that he had heard the Applicant say in November 2009 "I am going to make millions from this company." He had first become aware that the Applicant's locker had been vandalised when he was interviewed in relation to the matter by a "workplace inspector" as his own locker was in a different area. He said that the Applicant's locker had always had stickers on it, that the graffiti on the Applicant's locker had changed every now and then as people added to it. He did not know who had done so and denied having done so himself.

1. Mr Poulter indicated that he had taken up a petition in relation to the Applicant's body odour, but did not recall what he had done with the petition.

Evidence of Grant Dixon

1. Mr. Dixon is a Team Leader, Manufacturing, who has worked for the Respondent since 1992, with a short break from 1999-2000. He has been the Applicant's supervisor since 1994. He supervises the Applicant from Wednesday through to Friday. He denied being unfriendly towards the Applicant, but confirmed that they were not friendly.

1. Mr. Dixon denied referring to the Applicant as a "moron, imbecile, peasant" or a "bloody wog" or in derogatory terms of any sort. Mr. Dixon indicated that the Applicant regularly referred to him as an Aussie dog or Aussie pig or a mongrel dog and he would say to him "fuck you sickie". He alleged that the Applicant would regularly give him the Nazi salute. He admitted to telling the Applicant in response that he "smelled like shit."

1. Mr. Dixon specifically denied making plane crashing motions to the Applicant in May 2009 prior to his trip with his sons to Serbia. He did admit saying in response to the Applicant's celebration of terrorist attacks:

"Karma's going to get you. One day you'll be in a plane, and it's gonna fall out of the sky, the way you're carrying on."

1. He denied making any reference to the Applicant's children. Mr. Dixon also denied having witnessed or participated in the Cancer Party on 6 November 2009. He was aware of the Grim Reaper incident but had not witnessed it himself.

He denied discriminating against the Applicant on the grounds of his race, his disability or his carer's responsibilities.

Evidence of Mr Nubley

1. Mr Nubley had worked at Hannanprint since November 2004 as a human resources manager. He gave evidence that he had few dealings with the Applicant until around March 2009 when the issue of the Applicant's body odour arose. He had investigated complaints both by and about the Applicant. Mr Nubley gave evidence that whenever the Applicant raised issues they were thoroughly investigated by the Respondent and, if necessary, acted upon. He had informed the Applicant when his complaints could not be substantiated. He had investigated the Applicant's complaints about:

• Mr Dixon wishing the Applicant's plane would crash in May 2009. This was not substantiated.

• Being bullied because he was asked to freshen up by Mr Dixon in April 2010. This was not substantiated because there was a legitimate concern about the Applicant's body odour;
• Being mistreated by workmates in July 2010. This was not substantiated;
• Being sworn at by a team leader on 10 January 2011. This was substantiated and the team leader was counselled;
• Mr Dixon breaching confidentiality in January 2011 by harassing him about his ADB complaint. This was substantiated and Mr Dixon was counselled.
• Mr Phillips calling the Applicant "stinky". These were not substantiated.

1. He had dealt with the Cancer Party allegations - not substantiated -- and had managed the counselling of Mr Phillips in relation to the Grim Reaper incident.

1. He became aware of the graffiti on the Applicant's locker on 14 December 2009. The Respondent closed for the end of the year on 18 December 2009. He had asked for the graffiti to be cleaned off after the Company re-opened on 4 January 2010. He was made aware a few weeks later that the graffiti had not been entirely removed so he went down and scraped the remaining sticker off himself. He considered the swastika inappropriate, the Star of David politically insensitive and the graffiti something the Respondent didn't condone. He had not investigated who had written the graffiti.

1. Mr Nubley noted that on numerous occasions he had witnessed the Applicant referring to his supervisors as "Aussie dogs, Aussie pigs" or "fucking mongrels". He had investigated and counselled the Applicant in relation to sending threatening mobile texts to Mr Dimovski.

1. He had been involved in dealing with complaints about the Applicant's body odour and requests for him to shower and freshen up.

1. Mr Nubley confirmed that he had advised Mr Dixon of the state of negotiations to settle the ADB matter. He considered Mr Dixon entitled to know about the matter as the Applicant's manager/supervisor. He had counselled Mr Dixon for his actions in raising the state of negotiations with the Applicant.

He denied that the Applicant had been victimised in his employment.

Relevant Legislation

1. ANTI-DISCRIMINATION ACT 1977

7. What constitutes discrimination on the ground of race

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

SECT 49A

Disability includes past, future and presumed disability

49A

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B What constitutes discrimination on the ground of disability

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

4 D Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

49S Meaning of "responsibilities as a carer"

(1) A reference in this Part to a person's "responsibilities as a carer" is a reference to the person's responsibilities to care for or support:

(a) any child or step-child of the person (whether or not under the age of 18 years) who is:

(i) wholly or substantially dependent on the person, or

(ii) in need of care or support, or

(b) any child or adult who is in need of care or support and:

(i) of whom the person is guardian, or

(ii) for whom the person has parental responsibility under a law of the Commonwealth or this State, or

(iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998 , or

(c) any immediate family member of the person who is in need of care or support, being one of the following:

(i) a spouse or former spouse of the person or of a spouse or former spouse of the person,

(ii) a grandchild or step-grandchild of the person or of a spouse or former spouse of the person,

(iii) a parent or step-parent of the person or of a spouse or former spouse of the person,

(iv) a grandparent or step-grandparent of the person or of a spouse or former spouse of the person,

(v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person.

(2) A reference in this Part to a person's responsibilities is a reference to responsibilities:

(a) that the person has, or

(b) that the person is thought to have (whether or not the person in fact has the responsibilities), or

(c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or

(d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities).

(3) In this section:

"spouse" of a person means:

(a) the husband or wife of a person, or

(b) the de facto partner of a person.

Note: "De facto partner" is defined in section 21C of the Interpretation Act 1987 .

"step-child" or "step-grandchild" of a person means:

(a) a child or grandchild of the spouse or former spouse of the person, or

(b) a step-child or step-grandchild of the spouse or former spouse of the person (being a child or grandchild of the spouse's former spouse).

(4) A reference in this section to a child, step-child, grandchild, step-grandchild, parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother or step-sister of a person or of a spouse or former spouse of a person:

(a) includes a reference to persons whose relationship arises because of adoption, guardianship or fostering or because of the allocation of parental responsibility under a law of the Commonwealth or this State, and

(b) includes a reference to persons whose relationship arises because of the birth of a child whose parents are not married to each other and are not parties to a de facto relationship with each other, and

(c) in relation a reference to a brother or sister, includes a reference to a half-brother or half-sister.

49T What constitutes discrimination on the ground of a person's responsibilities as a carer

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.

49V Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer:

(a) in the terms or conditions of employment that the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

50 Victimisation

(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

Onus of Proof

1. The applicant has the onus of proof. The principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 must be borne in mind, in the sense that the seriousness of the allegation and other relevant factors are to be taken into account before determining whether the Tribunal is satisfied that a contravention of the AD Act has occurred. (See Dutt -v- Central Coast Area Health Service (EOD) [2003] NSWADTAP.)

Harassment and less favourable treatment

1. To succeed in his complaints of discrimination on the grounds of his carer's responsibilities, his presumed disability and his race, the Applicant must prove that he was treated less favourably than a person who does not share that attribute, than the person was or would have been treated in the same circumstances, because of that attribute in the workplace.

1. The Applicant has complained of "harassment" in his workplace. The ADA now defines "sexual harassment", and makes harassment on this ground specifically unlawful. The ADA does not make harassment on the grounds of carer's responsibilities, presumed disability or race unlawful of themselves. Prior to the amendment to the ADA specifically making sexual harassment unlawful, her Honour, Judge Matthews in O'Callaghan v Loder (1984) EOC 92-023 found that in the absence of an explicit legislative prohibition against harassment, harassing conduct could be characterised as a dimension of discriminatory treatment in employment (Rees, Lindsay and Rice p 277). Judge Matthews defined harassment (in this instance sexual harassment) as an unwelcome feature of the employment in a continuing rather than an isolated sense. The employer must know or should have known in the circumstances that the conduct was unwelcome. The unwelcome conduct may be in breach of the ADA, either because it forms part of the terms and conditions of the employment, it denies the employee access to benefits associated with the employment or it subjects the employee to any other detriment.

1. This Tribunal accepts that by analogy with these matters, complaints of harassment on the basis of carer's responsibilities, disability and race could be made as complaints of direct discrimination in employment. Such complaints can be characterised as "less favourable treatment in the terms or conditions of employment", treatment which denies the employee access to benefits associated with the employment or as treatment which subjects the Applicant "to any other detriment" on the basis of the stated attribute.

1. The concept of "treated" or "treatment" includes both differential treatment of the Applicant by the Respondent and the causation for the differential treatment.

1. In the matter of Nicholls and Nicholls v Director General Department of Education and Training (No 2) [2009] NSWADTAP 20 the ADT Appeal Panel determined that the question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex.... is at least one of the 'real,' 'genuine' or 'true' reasons for the treatment.

1. The Applicant must establish that the conduct he complains of as harassment created an unwelcome feature of his employment in a continuing rather than an isolated sense. He must establish that the Respondent employer knew or should have known that the conduct was unwelcome and that it affected the terms and conditions of his employment or it denied him access to the benefits associated with his employment or it subjected him to some other detriment.

Victimisation

1. In the matter of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) No 2 [2009]NSWADTAP 20 the ADT Appeal Panel held that

1. "In order to determine the causal connection between the Applicant's making of a complaint and the detriment she complained of as victimisation the Tribunal must be satisfied that the fact of the Applicant having lodged complaints of discrimination was a real, genuine or true reason for being subjected to the detriment." [2009] NSWADTAP 20 at [37].

1. Accordingly in order to make out his case in relation to victimisation, the Applicant must satisfy the Tribunal that he both suffered a detriment and that a real, genuine or true reason for him being subjected to the detriment was his having lodged a complaint of discrimination. The Tribunal notes here the provisions of section 4A of the ADA which essentially requires that where unlawful action has occurred, the discriminatory/victimisation reason need only be one of the reasons for the action.

Liability of Employer

1. The ADA provides for attributed (vicarious) liability for an employer for acts of agents or an employee. However an employer is not liable if it took all reasonable steps to prevent the employee from contravening the ADA.

Findings of Fact and Law on Race Discrimination Allegations

1. The Tribunal has considered the allegations of fact relating to the complaint of race discrimination.

1. The Tribunal considered the photographs of the graffiti placed on the Applicant's locker. In descending order the graffiti included:

• a swastika superimposed on the flag of the United States of America,
• the words "stink" and possibly "smelly",
• "you stink like shit",
• words "da zivi Macedonia",
• "the Vasco era"
• a star of David; and
• a penis.

1. The Applicant did not identify the authors other than saying he had seen Brett Poulter writing "you stink like shit" on his locker. This was denied by Mr Poulter who said the graffiti was on the Applicant's locker for many years and that it changed every now and then as people added to it. The Tribunal understands and accepts this to mean that workers at the Respondent's premises had written the graffiti on the Applicant's locker.

The Tribunal also accepts that other lockers in the area were not similarly subject to graffiti.

1. The Tribunal makes no finding as to who was the author of the graffiti - other than that it was an employee of the Respondent.

1. The Tribunal understands that it is the Applicant's contention that the graffiti on his locker was racially harassing. To find that the graffiti was racially discriminatory the Tribunal would need to be satisfied that

• It was less favourable treatment,
• the real, genuine or true reason (the test in Nicholls' case) was the Applicant's Serbian race,

• it was treatment which others, not of the Serbian race, would not have received in the same circumstances;
• it was unwelcome and that it had become part of the terms and conditions of the Applicant's employment, or that it had denied him access to a benefit or that it had subjected him to a detriment.

1. The Applicant complained to his employer -via the Workers Compensation insurer- that he was disturbed by the graffiti and the Tribunal accepts that the graffiti was unwelcome and that it had become part of his conditions of employment as it had been on his locker for some time. The graffiti identified and singled out the Applicant because the material was written on his locker and no other locker. The graffiti referred to different national and racial origins. It also featured a penis and the statement "you stink like shit". The Tribunal accepts that the graffiti was a detriment to the Applicant.

1. It was clear that the Applicant had consistently referred to his Serbian background and made a feature of it in the workplace. He had sparred with Mr Dimovski who was from a Macedonian origin about his Serbian origin. However, it was not put to the Tribunal how the graffiti referred to the Applicant's Serbian race. The Applicant did not explain to the Tribunal how this graffiti was based on his Serbian race, nor how a person not thought to be of Serbian race would have been treated differently. In the circumstances the Tribunal does not find that the Applicant was treated less favourably on the ground of his race.

Findings of fact and law on disability discrimination allegations

1. The Tribunal finds that the there was an incident on 6 November 2009 in which workers at the Respondent came to believe that the Applicant had cancer.

1. Apart from the Applicant, all of the alleged witnesses to the Cancer Party/ parties denied having witnessed or participated in them. Accordingly the Tribunal is not satisfied on the requisite standard that the Cancer Party/ Parties occurred and this complaint of disability harassment or discrimination cannot succeed.

1. Mr Phillips admitted to the Grim Reaper episode, describing his motivation as "having a dig" at the Applicant because of the Applicant's alleged reaction and comments to Mr Phillips in October 2009 after the Applicant was asked to shower. The Tribunal finds that Mr. Phillips did enact the Grim Reaper incident. However no argument was presented by the Applicant that someone not thought to have cancer would have been treated differently in the same circumstances. Nor was Mr Phillips' stated motivation of having a dig at the Applicant because of the Applicant's objections to being asked to shower contradicted by the evidence. No comparative evidence was presented to the Tribunal to show that the Applicant was treated less favourably by Mr Phillips in this instance than someone not thought to have cancer. The Tribunal finds that in these circumstances that the Applicant has not shown that he was treated less favourably on the grounds of his presumed disability.

Findings of Fact in relation to carer's responsibility discrimination

1. On the basis of the evidence, the Tribunal finds that there was a conversation between Mr Dixon and the Applicant concerning the Applicant and a plane going down. However there is no evidence before the Tribunal that Mr Dixon referred to the Applicant's children or that there was an implicit reference to them. Accordingly this Complaint of carer's responsibility harassment or discrimination is not substantiated.

1. The Tribunal was not presented with any evidence that the Applicant's care for his late wife who had died from cancer had been the subject of discussion or comment in the context of the alleged Cancer Party or parties, or the Grim Reaper event. Accordingly the Tribunal dismisses the complaints of discrimination on the grounds of carer's responsibilities.

Findings of Fact in relation to victimisation

1. It appears that the respondent was formally advised of the Applicant's complaints of discrimination and harassment by letter of 16 November 2009 from the Applicant's solicitors at that time - Just Legal .

1. After this time, further incidents did arise about the Applicant's body odour. The Tribunal is not satisfied to the requisite standard that these complaints arose because of the Applicant's discrimination complaints. The Applicant's body odour had already been an issue prior to the Applicant's complaints of discrimination.

1. The Tribunal is not satisfied from the evidence that the employer's action in disciplining the Applicant in relation to the text message or messages sent to Mr Dimovski was inconsistent with theRespondent's Core Values and the disciplining of other employees such as Mr Phillips for the Grim Reaper incident, the Team Leader who subsequently abused the Applicant and Mr Dixon in relation to his comments in January 2011 to the Applicant concerning his ADB complaint.

1. It appears from material presented to the Tribunal in exhibit "L" that in 2010 the Respondent did conduct a workplace session for staff on Discrimination and Harassment which appears to have been attended by staff such as the Applicant - but not managers such as Mr Phillips, Mr Dixon or Mr Nubley. It is not clear why managers did not attend. The Tribunal was not provided with evidence showing a nexus between this and the allegation that this failure to train managers constituted victimisation of the Applicant. Accordingly the Tribunal does not find proved this aspect of the Applicant's allegations of victimisation.

1. The Tribunal finds that Mr Dixon did make comments to the Applicant about his complaint to the Anti-Discrimination Board in January 2011, ridiculing the Applicant about his complaint and thereby subjecting him to a detriment. Further the Tribunal finds that the real reasons for Mr Dixon's actions in this regard were his disapproval of the Applicant making and pursuing his complaint. Accordingly, this complaint of victimisation is substantiated.

Relief

1. The Applicant's representative put to the Tribunal that the Applicant was seeking:

His costs

Compensation reflecting his hurt, pain and suffering; and

An apology from his employer.

1. The Respondent's counsel submitted that the Applicant was not entitled to any damages as his own conduct had largely contributed to any unhappiness in the workplace. To the extent that the Applicant might have been entitled to damages they should be nominal or modest and limited to the period of his Workers Compensation claim around January 2010. The Respondent did not seek its costs of the matter at that time but would consider its position once the Tribunal had made its decision known.

1. The Tribunal notes that the Respondent did investigate the allegation of victimisation in respect of Mr Dixon's comments to the Applicant about his complaint and Mr Dixon was given a verbal warning by Mr Nubley about his behaviour.

1. The Applicant presented as a person very distressed by his circumstances. It was difficult for the Tribunal to determine exactly how much of this was attributable to the victimisation that the Tribunal has found proved in his employment by the Respondent. The Applicant did not submit any medical or psychological evidence in support of his claim. The Tribunal did see Workers Compensation certificates completed by the Applicant's treating practitioner certifying him unfit for work.

The applicant has the onus of proving his loss, and in the circumstances, there is very little that the Tribunal can go on in relation to quantum of damages.

In Carter v. Brown [2010] NSWADT 109 , the applicant was successful in only some of his applications. In that case the Tribunal said (at [162]:

"As the applicant has not been successful in all of his complaints, any award must be limited to loss arising out of that conduct found to constitute unlawful conduct pursuant to sections 49ZT(1) and s. 50 of the Act . The applicant's evidence did not apportion his distress to particular incidents. We, therefore, must identify whether any of the distress and humiliation suffered by the applicant with respect to each respondent, is attributable to the incidents which have been found proved".

In the circumstances, we have found that the only incident suffered by the applicant which can sound in damages is the Mr Dixon's behavior in mocking the Applicant in respect of his negotiations about his claim. In our view, the damages are necessarily limited and the Tribunal agrees with the Respondent that they should be nominal.In these circumstances the Tribunal considers that an amount of $5000 is appropriate.

Costs

1. Section 88 of the ADT Act provides that each party to a matter before the Tribunal will bear its own costs unless it is fair to do otherwise having regard to factors specified in that section. No such factors were put to the Tribunal. The Tribunal makes no order as to costs.

1. Orders

1. The complaint of discrimination in relation to harassment on the grounds of carers' responsibilities is dismissed.

2. The complaint of discrimination in relation to harassment on the grounds of disability is dismissed.

3. The complaint of discrimination in relation to harassment on the grounds of race concerning the graffiti on the Applicant's locker is dismissed.

4. The complaint of victimisation is substantiated in so far as Mr Dixon's comments to the Applicant in January 2011 are concerned. The balance of victimisation complaints is dismissed.

5. The Tribunal orders that the Respondent undertake training of its managers and supervisors in relation to dealing with workplace complaints. The human resources staff should attend together with the managers and supervisors. The Respondent is invited to present a proposal to the Tribunal setting out how it proposes to do this including the number and length of sessions and the subject matter to be dealt with for approval by the Tribunal. This proposal should be put to the Tribunal within 28 days of these orders. The Tribunal will seek the Applicant's view of this proposal.

6. The Respondent is to pay the Applicant an amount of $ 5000 in respect of the Applicant's hurt feelings as a result of the victimisation.

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Decision last updated: 05 December 2011