Fenwick v Beveridge Building Products Pty Ltd [1985] HREOCA 1 (2 October 1985)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

INQUIRY PURSUANT TO PART III DIVISION 3

Employment - dismissal - terms and conditions of employment - requirement that woman wear specified clothing not required of men; whether a term or condition of employment (s.14(2)(a)) or "any other detriment" (s.14(2)(d)).

DECISIONS AND REASONS

Fenwick Complainant

v.

Beveridge Building Products Pty. Ltd. RESPONDENT

No. 2 of 19 85

Dame Roma Mitchell Chairman

Mr P. H. Bailey Deputy Chairman

Mrs N. C. Ford Commissioner

Date: 2 October 1985

FENWICK V. BEVERIDGE BUILDING PRODUCTS

Reasons for Decision

By a written complaint dated 9 August 1984 and received in the office of the Anti-Discrimination Board (N.S.W.), the complaint Mrs Debbie Fenwick alleges that she was discriminated against on the grounds of her sex by Roy Smythe, her supervisor at her former place of employment, Beveridge Building Products.

Pursuant to section 14(2) of the Sex Discrimination Act 1984:-

"14(2) It is unlawful for an employer to discriminate against an employee on the grounds of the employee's sex, marital status or pregnancy-

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

(b) ...

(c) by dismissing the employee; or

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

Mr Basten, Counsel for the complainant, submitted that the respondent had discriminated against the complainant on each of the grounds set out in section 14(2)(a), (c) and (d).

In her written complaint the complainant stated her former employer's name to be "George Beveridge of Beveridge Building Products". It was agreed, at the outset of proceedings, that the company Beveridge Building Products Pty. Limited had employed the complainant and should be named as respondent in the proceedings.

In her written complaint the complainant said:

I feel very strongly that I have been discriminated against because of my sex. Today, 9 August 1984, I was given my notice and the reason for this was they were employing a male to do my job and to work 40 hours where I worked 30 hours yet I was not asked to increase my hours.

My employer's name is George Beveridge of Beveridge Building Products and the man who has discriminated against me is my supervisor (Roy Smythe).

...

I feel I should be compensated for the financial and emotional losses I have received because of this action, as six months ago I applied for a loan, on the

knowledge I have a secure job, which is $6,000.00."

As to the respondent's liability for any discrimination by Roy Smythe the complainant relies on section 106 of the Act which states:

"106(1) Subject to sub-section (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent -

(a) an act that would, if it were done by the person be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part III); or

(b) an act that is unlawful under Division 3 of Part II,

this Act applies in relation to that person as if that person had also done the act.

(2) Sub-section (1) does not apply in relation to an act of a kind referred to in paragraph l(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."

Pursuant to Part III Division 2 of the Act the Sex Discrimination Commissioner inquired into the complaint and endeavoured to settle the matter by conciliation but was unsuccessful and referred the matter to the Commission pursuant to section 57(1)(b) of the Act.

Section 5 of the Act is as follows:-

"5 (1) For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of -

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person,

the discriminator treats the aggrieved person less

favourably than, in circumstances that are the same or

are not materially different, the discriminator treats

or would treat a person of the opposite sex.

(2) For the purposes of this Act, a person (in this

sub-section referred to as the discriminator")

discriminates against another person (in this

sub-section referred to as the aggrieved person.) on

the ground of the sex of the aggrieved person if the

discriminator requires the aggrieved person to comply

with a requirement or condition

(a) with which a substantially higher proportion of

persons of the opposite sex to the aggrieved person

comply or are able to comply;

(b) which is not reasonable having regard to the

circumstances of the case; and

(c) with which the aggrieved person does not or is not

able to comply. "

Pursuant to section 8 of the Act:

"8. A reference in sub-section 5 (1), 6 (1) or 7 (1) to the doing of an act by reason of a particular matter includes a reference to the doing of such an act byreason of 2 or more matters that incluse the particular ratter, whether or not the particular matter is the dominant or substantial reason f or the doing of the

act."

Sometime in November 1983 (the complainant says 9 or 10 November, the respondent says 23 November) the complainant commenced employment at the respondent's Warners Bay premises.

The respondent sells hardware products from those premises both wholesale and retail and now employs about 33 people at the premises. The complainant responded to an advertisement for a sales assistant in the retail hardware section. She was originally employed on a casual basis as the retail hardware section was being set up and the hours which she would ultimately be required to work were not determined. Initially

the hours worked varied from day to day. Between 23 November 1983 and 20 March 1984 the complainant's weekly hours varied from 24 to 45.

After 20 March 1984 the complainant worked a 30 hour (week, being employed from 6.30 a.m. to 12.30 p.m. Monday to - Friday. She says that in March 1984 she approached her supervisor Lynette Beveridge and asked for some certainty in the hours and times she was to work. As a consequence she was offered the 30 hour week which she was happy to accept. In a letter to the Anti-Discrimination Board dated 4 September 1984, the respondent stated that the complainant continually indicated - to the firm that, due mainly to family commitments, she was not able to work full time and was not able to work overtime on Saturday mornings. In a letter to the Anti-Discrimination Board dated 23 October 1984, the respondent stated that the complainant had requested a reduction in her hours and had made a specific request that she be excluded from the weekend roster as she had sporting commitments on a Saturday and Sunday was the only day she had to spend with her family.

Initially the complainant assisted in setting up the retail hardware section by cleaning. She learned to use the cash resister. When the retail store opened in December 1983 she began work as a sales assistant. Her duties involved selling and working the cash register, pricing, coding and serving customers.

In March 1984 Lynette Beveridge ceased employment with the respondent. The complainant became directly responsible to Roy Smythe. The complainant says that difficulties in her relationship with Roy Smythe were apparent prior to Lynette Beveridge's departure but multiplied following her departure. The complainant and Ben Barnett worked under Roy Smythe in the retail section. In addition Ben Barnett assisted with heavy work in the back shed. Sharon Berman worked as a sales clerk in the office located in the front retail section and was also supervised by Roy Smythe. Dianne Rauch, Mr George Beveridge's daughter and a director of the respondent company, worked as a clerk under Roy Smythe in the retail section. Her hours sometimes overlapped with those of the complainant. In July 1984 Allan Godden began working with the complainant and Ben Barnett in the retail section, occasionally assisting with heavier work in the back shed.

On 9 August 1984 the complainant received her pay and was at the same time given notice. Later that day there was a staff setting addressed by Roy Smythe and attended by the new sales manager Raymond Bodley amongst others.

The complainant alleges that during her term of employment the respondent discriminated against her on the ground of sex in the terms or conditions of employment afforded to her and, as we have said, that the person who actually discriminated was her supervisor Roy Smythe. She said in evidence that Mr Smythe treated her differently from the way he treated the men. The first question therefore is whether Mr Smythe treated Mrs Fenwick as a woman less favourably than he treated the men in the employ of the respondent or than he would have treated a man in the position which Mrs Fenwick occupied and whether, if he did treat her differently, he did so because of her sex or a characteristic appertaining generally to women or imputed to women. Mrs Fenwick claimed that Mr Smythe did treat her differently from male employees and she attributed it to this fact that, as she put it, he was quite chauvinistic towards womens. She indicated three specific areas of

complaint. First she said that Ms Smythe insisted upon her remaining in the open shed where the sales area was situated, even in the depth of winter when it was very cold. Mr Godden, who impressed us as a reasonable and honest witness, said:-

"At the time that I commenced employment, in the middle of winter, it was cold - it is an open shed and the wind whistles through and it is very cold to work there. We would sort of go into the office occasionally to try and warm up, which would mean that there would be nobody at the sales area and as a customer came in we would virtually try to take it in turns to go and serve the customer, the difference being I suppose that Roy would prefer Debbie being their more experienced employee at that stage than myself to go out and generally remain in the sales area rather than in the office.

He said further:-

He generally would request that she sort of be in the sales area but I think I have got to qualify that point because if she was in the office she would be talking to people whereas myself I would just remain there and not talk to people as much and I suppose, from his point of view, it was disruptive as far as the other office staff were concerned.

We have no doubt that the men were given preference in remaining out of the cold and in the office but we also believe, from all the evidence, that the complainant did like to gossip with members of the staff, particularly with Sharon Berman. It may be that it was because he believed that she was disrupting Sharon Berman's work that Roy Smythe told the complainant to return to the cold conditions in the shed.

Nevertheless we think it is clear that he was not always at ease with women employees. Indeed Sharon Berman mads a complaint to Raymond Bodley the Sales manager about Roy Smythe's attitude to her and Mr Bodley removed her from the supervision of Roy Smythe and put her under his own direct supervision. He said that he told Roy Smythe that he bad done this. Mr Smythe, in giving evidence, purported not to know anything about the transfer of supervision. We do not believe

him in this and indeed it seemed to us that Mr Smythe did tend to protest too much. The same may also be said of most of the present employees of the respondent who gave evidence. They were so anxious to absolve the employer and persons in authority from any suggestion of discrimination that the evidence was, to some extent, incredible. A number of statements from members of the staff were tendered and those members of the staff also gave oral evidence. In relation to the statements their evidence in effect was that each wrote his or her statement without prompting and without assistance. We do not believe that this was so. A perusal of the statements suggests to us that at least topics were indicated upon which the statements were required and we think it probable that there was more indication than that as to the appropriate contents of the statements, all of which were given after the conciliation conference had failed.

The second complaint which Mrs Fenwick made concerning Roy Smythe's attitude towards her related to a yellow apron. It appears that when the shop was first opened yellow aprons were provided for the women and yellow t-shirts for the men. Mr Smythe complained to the complainant because she was not wearing the yellow apron. He made this complaint on more than one occasion. Be said in evidence that he asked her to wear the apron four or five times and that he complained to Mrs Etheridge, the administration manager for the respondent, because the complainant did not wear the apron. He said that Mrs Etheridge said that the company would like the complainant to wear the apron and he went back and spoke to the complainant who again refused to wear the apron. He said that Mrs Etheridge did not suggest to him that Mrs Fenwick did not have to wear the apron because the boys were not required to wear any distinctive dress. Mrs Etheridge said that when Roy Smythe complained to her that Mrs Fenwick was not wearing her yellow apron she told him that Mrs Fenwick did not have to do so because the men were not obliged to wear any identifying clothing. In this instance we accept the evidence of Roy Smythe and do not believe that Mrs Etheridge made that comment. We do accept the evidence of

the complainant that, when the complained to Mrs Etheridge about Roy Smythe's attitude towards her, Mrs Etheridge said to her "wear the yellow apron" and said that the complainant was refusing to do what Roy Smythe wanted her to do. We believe that the complainant received no sympathy from Mrs Etheridge in relation to her complaints but, on the other hand, we believe that at she was sufficiently stalwart to persist in her refusal to wear the apron.

The third way in which the complainant said that Mr Smythe discriminated against her and Sharon Berman was that he allowed the men to have breaks but refused to allow her and Sharon, who had been good friends for as long period, even to have morning tea together. He required them to take their morning tea at separate times. She was not supported in her evidence of discrimination by Sharon Berman but we accept the complainant's evidence that Mr Smythe was averse to the complainant and Sharon Berman spending time together during working hours. However, on the whole of the evidence, we believe that the complainant did have a tendency to chatter during working hours. That was the effect of Mr Godden's evidence and we accept it. We think it probable that Mr Smythe formed the opinion that more time was wasted by the complainant and Sharon Berman in talking than was wasted by the men. There appears to have been some ground for that opinion.

Finally, Mr Smythe frequently left written instruction for the complainant and not so frequently for other people. We think this probably happened because he and the complainant were not getting on well. Mr Godden said that he regarded that as part of the personality clash between the complainant and Mr Smythe and we think that was probably correct.

We think, therefore, that Mr Smythe did adopt a different attitude and, to some extent, a less favourable attitude towards the complainant than he did towards the men under his supervision. We doubt if he did so merely because as a woman or because of any characteristic appertaining

generally to women. It is probable that he did not like women who were dominant or self-assertive. We believe that the complainant was self-assertive. The evidence of Mrs Lynette Beveridge suggests that Mr Smythe was uncomfortable in working with women who were employed in occupations which he did not regard being traditionally those of women. We do not think that the attitudes which Mr Smythe adopted and the way in which he treated the complainant while she was an employee of the respondent amounted to a discrimination in her terms or conditions of employment. But even if it did, the fact is that she did not complain to the Human Rights Commission while she was still employed by the respondent. Her complaint case after her dismissal. It seems to us that, even if we were to find that there was discrimination in the terms and conditions of her employment (a finding which we are not able to make) this would not warrant more than a declaration under the first section of section 81(1)(b)(i) that if there was discrimination in her dismissal then she is entitled to further and different relief.

This brings us to the question - why was she dismissed?

We should say that in our opinion the onus of proof is upon the complaint to establish that her dismissal was discriminatory in that one of the reasons for her dismissal related to her sex or a characteristic appertaining generally to women or generally imputed to women. In establishing this the complainant may, in the absence of direct evidence, use in support inferences drawn from the primary facts. Rhanna v. Ministry of Defence [1981] I.C.R. 653 at 658 (F); Owen & Briggs v. James [1981] I.C.R. 377; Chattopadhyay v. Headmaster Holloway School and Others [198] I.C.R. 132. We agree with Mr Basten that if, by the time of he dismissal, her work had deteriorated because she had been force to endure a work environment rendered hostile by reason of the treatment accorded to her as a woman and she was dismissed because her work was unsatisfactory then the dismissal was a detriment flowing from the discrimination in the terms and conditions of work.

At this stage it is pertinent to consider the reasons for dismissal advanced by the respondent and its employees from time to time. The complainant said that when Mrs Etheridge told her she was to finish her employment on that day she asked could she have a reason and Mrs Etheridge said "We're putting on a boy who can be rotated on both sections of the firm and who can load cement and steels." Mrs Etheridge denied that she had said this and said that she told the complainant that it was a management decision to do away with the part time position. Mr Smythe, who said in his evidence in answer to Mrs Fenwick that about three to four weeks before Mrs Fenwick left the firm he told Mrs Lynette Beveridge that he would prefer a younger person, preferably a male, to train, agreed that at a staff meeting which took place on the afternoon of Mrs Fenwick's dismissal and after her dismissal he was asked whether Mrs Fenwick was going to be replaced by a male or a female. Be said that his reply was "I don't know at this stage. Again it is up to the company to decide that. I should imagine it might be a male because of working up the back and down in the back lifting cement, fibro steel." In a letter dates 4 September 1984 in reply to a letter from an officer of the Anti-Discrimination Board the company said that Mrs Fenwick was dismissed because a position of part time sales assistant was no longer required and that the position had not been replaced. It said "The fact that Mrs Fenwick was a female had nothing to do with her dismissal and it must again be pointed out that the position she occupied was part time only and this was so at her request due to her family commitments". The letter added "Certain aspects of Mrs Fenwick's work were in fact unsatisfactory, mainly that she was inaccurate when passing stock but, again, we would reiterate that the reason for her dismissal was that the part time sales assistant position was dispensed with.

Mr George Beveridge, the managing director of the respondent, said that he had noticed customers standing waiting to be served; that he had asked Mr Smythe why there was no one at the front of the premises serving and Mr Smythe said that he did not know where the complainant was; that he, Mr Beveridge,

had then found her in the back office. He said that he then determined that she must be dismissed and that he told Mrs Etheridge so. He said that was a couple of months before the complainant was dismissed. He said that he was responsible for her dismissal. He said also that he had the general impression that she was responsible for mistakes in pricing and that it may have been sat the back of his mind" that she did not want to work full time. In screws examination he agreed that it was totally inaccurate to say that she was dismissed because the position of part time assistant was no longer required.

His evidence raised the question why the first letter by the respondent to the Anti-Discrimination Board should have contained an inaccurate reason for the complainant's dismissal. It is clear that the complainant was never offered a full time position and, which a part time assistant may no longer have been required, it would have been reasonable, if this were the ground for her dismissal, to have told her so before she was dismissed and given her an opportunity of suffering to work full time. In any event the respondent had removed itself far from that ground of dismissal. It has persisted in the claim that she made mistakes in pricing the goods. It is clear that other employees also made mistakes. Mr Barnett said that there was an occasion when Mr Bodley called together the complainant, Miss Berman and himself and had before him a pile of photostatted dockets from the three of them. He said that each of them had made mistakes. Miss De Rycke blamed the complainant for most of the mistakes but in our opinion her demeanour in given evidence demonstrated that she was biased against the complainant. We do not conclude that the complainant was responsible for the majority of the pricing complaints.

What then was the reason? Did the company prefer to employ a man? Mr Godden started to work for the respondent in July 1984. He was interviewed by Mr Smythe and was referred to the respondent by the Commonwealth Employment Service in response to a job specification dated 14 June 1984. The

description of the jobs in the notice was "Sale of hardware goods and associated duties, such as clerical duties and packing. Will be advising clients on sale items in relation to renovations etc. MUST HAVE SOUND PRODUCT/BUILDING KNOWLEDGE". The requirements were stated ass follows "Good presentation for sales, public contact. ESSENTIAL TO HAVE EXP IN EITHER CARPENTRY, RENOVATIONS ETC." In response to that notice four men were referred to the respondent and Mr Godden was selected. It was certainly likely that a few women would have the experience required for the job as advertised. However, it was a notice which was not in itself discriminatory. It seems likely that Mr Godden was employed with a view to the dismissal of the complainant which took place some weeks after. If the decision had been made, as appears likely, to dismiss the complainant then Mr Godden was here intended replacement as far as numbers on the staff was concerned. He is employed in the retail sales and accordingly does some work which the complainant formerly did, but he is only one to do some of her work. Since her dismissal the duties which she formerly undertook include Dianne Rauch, Narelle Kaiser and at one time Lynn Simmons and now Samantha Kent. So that it cannot be said that she has been replaced by a male in the performance of all the duties which she formerly undertook.

The reasons advanced by the respondent for the dismissal of the complainant have been contradictory and unsatisfactory. We do not believe that we have been told the whole truth. We think it probable that the clashes between the complainant and Mr Smythe led to her dismissal. She sought help from Mrs Etheridge. That was not forthcoming. We believe those in authority supported Mr Smythe in preference to the complainant. Nevertheless we do not find it established that it was because she was a woman or because of her characteristics or imputed characteristics as a woman that Mr Smythe was supported in the conflict between him and the complainant. Neither do we believe that he discriminated against her within the meaning

attribute to the word "discrimination" in the Sex Discrimination Act. He was probably not adept at getting on with women employees in roles which he considered to be non-tradional, especially if they were not quiescent. But we have reached the conclusion that the personality clash, to which so many of the witnesses deposed and which we have no doubt was a topic of conversation among them after the complainant was dismissed, was in fact just that. In our opinion, the respondent has not shown an adequate reason for the dismissal of the complainant but the Sex Discrimination Act does not require the respondent to do that. The complainant must establish that there was unlawful discrimination within the meaning of section 14 (2) of the Act. We do not find that she has discharged the onus of proof. The complainant must be dismissed.