Erbs v Overseas Corporation [1986] HREOCA 2 (2 December 1986)

MARION LYNETTE ERBS

V

OVERSEAS CORPORATION PTY. LTD.

(TRADING AS NAMCO INDUSTRIES (VIC.))

REASONS FOR DECISION

A. INTRODUCTION

Pursuant to section 50(1) of the Sex Discrimination Act 1984 ("the Act"), Marion Lynette Erbs ("the complainant") complained to the Commission on 2 November 1984 that her employer, Overseas Corporation Pty. Limited (trading as Namco Industries (Vic.)) ("the respondent") had on 29 October 1984 dismissed her from it's employment. She alleged that the respondent had discriminated against her on the ground of pregnancy within the meaning of section 7(1) of the Act (including its expansion by section 8) and that this dismissal was by section 14(2)(c) of the Act unlawful. She asked the Commission for a finding that her complaint was substantiated and for a determination by way of declaration that the

respondent should pay her substantial damages by way of compensation for the loss and damage suffered by reason of the respondent's conduct. Both the finding and the determination sought are placed within the power of the Commission by section 81(1) of the Act.

Conciliation by the Sex Discrimination Commissioner's delegate ("the Commissioner") having not resolved the complaint, the matter was referred by the Commissioner to the Commission for inquiry on 25 March 1986 pursuant to section 57(1) of the Act. Public hearings in connection with the inquiry were held in Melbourne on 24 and 25 May and 27 June 1986, concluding with an outline of the parties' submissions by their representatives. By agreement between the parties, a timetable was set for the presentation of their detailed written submissions including by counsel assisting the Commission. The Commission also indicated that if any party wished to call further evidence or put additional oral submissions, it would favourably consider sitting again for that purpose. No request for a further sitting for these or any other purposes was received, but the written submissions, including replies by each of the complainant and the respondent to the other's primary submission, and submissions by counsel assisting, were in due course exchanged between the parties and submitted to the Commission, although somewhat later than the agreed time. The final submission was received on or about 12 August 1986. The Commission has been greatly

aided by all these submissions and expresses its appreciation to counsel and the complainant's agent for their assistance.

B. LEGAL ISSUES

As fought, this case raises a number of intricate issues of law and fact. We shall of course be considering later the detailed evidence submitted in our hearings, but in deference to the careful submissions of counsel both orally and in writing on the legal aspects, it is necessary to summarise the respective cases presented, so that these questions can be identified.

The complainant's case was based essentially on two approaches:

1. The method and tone of the complainant's dismissal and

the words used and not used by her immediate superior

at the time raised a clear inference that she was

being dismissed because she had fallen pregnant and

was intending to take maternity leave.

2. Although the complainant conceded that the respondent

was experiencing serious financial difficulties at the

time of her dismissal and had been retrenching staff

and restructuring its operations for some time prior

to her dismissal, the complainant was not the

"natural" person to dismiss because she had clearly

superior skills and experience to the person to whom

her principal duties were allocated after her

dismissal.

The respondent did not dispute this claim of competence. Indeed it repeatedly underlined the complainant's competence unequivocally before us. It asserted, however, that the dismissal was a management decision which arose entirely from the financial pressures which it had been experiencing for some years and for the need to reduce staff and salary outlays. The complainant did not contest that if this were true, and represented the sole reason for her dismissal, the respondent would have had the right to dismiss her.

This brief summary identifies at once two legal problems raised by these competing positions:

1. Although the Commission has to decide which evidence

it does and does not accept and make findings of fact

accordingly, it is not bound to make a finding in

favour of one set of assertions to the exclusion of

the other. It may accept some part of both sets of

assertions and resect others. Most importantly, it is

required to consider the possibility that the

complainant's dismissal was brought about in part by

her pregnancy and in part by the respondent's

precarious and unsatisfactory financial position. In

other words, the Commission must construe the Act so

as to identify the limits of what is and what is not

unlawful discrimination on the grounds of pregnancy.

2. Because the parties agree only on the basic fact of

dismissal but allocate fundamentally different reasons

or causes for it, the existence or otherwise of an of

onus of proof becomes significant. This is especially

so because, as we understand the parties' arguments,

the respondent ascribes to its reason an exclusivity

of any other reason (especially the complainant's

assertion). The complainant, on the other hand,

agrees that the respondent's claim of impecuniosity-

induced internal reorganisation and her own claim of

pregnancy may share the culpability for her dismissal.

Her agent argued that that is sufficient for her to

succeed here.

There is certainly little room for doubt, and we do not understand the complainant to contend otherwise, that the respondent was suffering a downturn in its profitability, both at and before the time of the complainant's retrenchment. Even in these enlightened times, there can also be little room for challenging the entitlement of an employer to engage, relocate and retrench staff as and when it chooses, subject only to law.

As we see the case, the questions that must therefore be resolved are these:

1. To what extent does the Act impose restrictions, in

the circumstances of this case, on the respondent's

right to dismiss the complainant?

2. Do legal obligations fall on either party to satisfy

us by evidence of the relevant facts? If so, what

obligations fall on which party in this case? If not,

how are we to approach our factfinding task?

1. QUESTIONS OF CONSTRUCTION

Section 7(1) defines discrimination on the ground of pregnancy as taking place if

"(a) by reason of -

(i) the pregnancy of the aggrieved person;

(ii) a characteristic that appertains generally to

persons who are pregnant; or

(iii) a characteristic that is generally imputed to persons who are pregnant,

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 sho is not pregnant; and

(b) the less favourable treatment is not reasonable in the

circumstances."

Section 8 then operates to declare that any of the reasons set out in section 7(1)(a) need only be one of a number of reasons for the less favourable treatment. It does not even need to be the dominant or substantial reason - only one of the actual reasons. Section 14(2)(d) establishes as unlawful discrimination the dismissal of a person on the ground inter alia of pregnancy as so defined.

In addition, we have been referred to the Commercial Clerics Award ("the Award") made by the Industrial Relations Commission of Victoria in April 1984. This entities women with at least twelve months prior continuous service with an employer to a period of 6 to 52 weeks maternity leave subject to due notice and medical confirmation of pregnancy. After the leave, the employee is entitled to restoration of her former or comparable employment. She may not be dismissed on the ground of the pregnancy or her absence on maternity leave but the employer's other rights of dismissal remain,

presumably including for reasons inter alia of finance, dissatisfaction with the employee, or administrative or organisational restructuring. It was not disputed before us that the complainant would have been entitled to, or would have been granted, maternity leave if she had remained in the respondent's employ. Indeed we were advised that the respondent had previously granted maternity leave to some one or more of its employees. Together with the parties to this inquiry, we therefore assume without finding that the complainant had an entitlement to maternity leave either under the terms of the Award or some similarity expressed legal instrument.

Nor would any entitlement the complainant might have under the Award preclude the Commission from examining the available evidence to determine whether, recognising that an employee may be retrenched by reasons other than pregnancy, the fact of her pregnancy might also be a reason for her retrenchment by virtue of section 8 of the Sex Discrimination Act 1984.

If this complainant is therefore to establish unlawful discrimination, the evidence must be capable of the following conclusions:

1. that the complainant's dismissal amounted to or

represented treatment less favourable than was or

would have been given to a person who was not pregnant

but whose circumstances sere or would have been the

same or very similar. The evidence does not reveal

any other pregnant woman employed by the respondent at

the time and no relevant male or female employee whose

continuing employment was under review. Thus for the

complainant to succeed, the evidence must establish

that if there had been one in identical or clearly

similar circumstances to the complainant, a man or a

non pregnant woman would not have been dismissed as

and when the complainant was dismissed;

2. that the dismissal was, in part at least, caused or

brought about by the complainant's pregnancy, by a

natural or general characteristic of pregnant women,

or by a characteristic generally imputed to pregnant

women; that is to say, that the complainant was

selected for retrenchment in part at least because she

was pregnant, or had or would have had the ordinary or

assumed features of pregnancy; and

3. that the dismissal was not reasonable in the

circumstances.

2. RESPONSIBILITIES OF PROOF

It will immediately be seen that proof or even evidence in support of the proof of some of these matters, especially

those that as here require proof of a negative or hypothetical matter, will in many if not all cases be difficult, perhaps impossible, for a complainant to adduce. If there is only one relevant retrenchment at the time, how will it be possible to establish that a non pregnant person would not have been dismissed in the same circumstances? How would a female employee, not privy to the decision-making of her employer, perhaps by only one or two executives, establish that a dismissal by, say written notice, was activated by her pregnancy? If the stated reason for dismissal was economic downturn, evidence that a dismissal was not reasonable might be most difficult to obtain, especially in a case of corporate complexity where the employer belonged to a family of linked companies.

In Fenwick v Beveridge Building Products 1986 EOC 92-147 at page 76,462, the Commission held that the complainant bore the onus of proving the discrimination alleged by her in that case. Counsel assisting and counsel for the respondent have relied on that decision to press on us a similar ruling in this case; they have even inferred if not submitted that Fenwick represents general authority for the proposition. We doubt that this is so. Fenwick was an unusual case, decided very such on its own facts. No need arose there to prove as here that the dismissal was not reasonable. The alternative reason given for the dismissal there did not as here require consideration of complex financial questions concerning

the employer's profitability and the details of considerable staff restructuring and relocation.

Something similar to the Fenwick formulation was said by the N.S.W. Equal Opportunity Tribunal in Robson v Geoffrey Button (Sales) Pty. Ltd. (1985) EOC 92-125 at page 76,269 and in Dawes v J. Robins & Sons Pty. Ltd., unreported 15 July 1983 (No. 25 of 1982), at each was very much a passing remark and would hardly have been intended as a considered statement of law. Neither case appears to have been decided on a balancing or comparison of the evidence and credibility of the parties and their witnesses.

In Bear v Norwood Private Nursing Home (1984) EOC 92-019 at page 75,496, the South Australian Sex Discrimination Board said that the complainant in that case had to prove that her dismissal was due to pregnancy or the signs and symptoms thereof. Although the Board said that it was not satisfied that she had discharged that onus, it made findings of-fact and determined another cause for her dismissal on the basis of all the evidence it had heard without regard to the type of balancing exercise normally necessary to give the legal criteria involved in considerations of onus of proof any particular relevance or application. Again, despite the earnest submissions to the contrary of counsel for the respondent here, we doubt that this decision was intended as a statement of law of general application.

In deference, however, to the expressions in Fenwick, Bear and the other cases to which we have referred, and because in the view we have formed of the extensive evidence called, here is no need to decide the matter definitively in this case, we are for the purposes of argument prepared to assume that this complainant bears the civil onus of proof.

C. THE EVIDENCE

The complainant joined Namco Industries (Victoria) on 1 June 1981 as credit manager in the Accounting and Administration Branch. The manager of that branch was Mr Geoff Hovell and he was accountable in turn to the general manager who, between April 1983 and September 1984, was Mr David Fickling. He in turn was responsible to the divisional general manager of the furniture division of McIIwraith Davey, Mr Peter Reid, who held that position between August 1982 and December 1985.

The complainant continued to work in the position of credit manager until she was retrenched on 29 october 1984. By that

time, as a result of contraction of the business of Namco Industries (Victoria), particularly in the areas of retail furniture and merchandising, there had been progressive retrenchment of staff. A credit staff of six in 1981 had been reduced to only two by mid 1984 and the company claimed that the retrenchment of the complainant was only the last stage in a general restructuring of Victorian operations. Following retrenchment of the complainant in October 1984 the former sales administrator, Rosy Vandervlies, was appointed to the position of credit officer with a salary rather less than that paid to the complainant as credit manager.

All the witnesses who knew the complainant spoke well of her capacity as a credit officer. She had been in charge of the group when total debtors were reduced from an unacceptably high level in 1983 to what Mr Fickling regarded as 'a fairly good level by November 1983', and it was then held at about the same level through to October 1984. Mr. Hovell, who was manager of the Accounting and Administration group throughout the period of the complainant's employment, told the Commission that there had been a continuing progress of retrenching, restructuring and reorganising since about 1980 (p.135) and that as the size of the organisation changed so did the roles within it.

Within the broad policy as laid down by the general manager, it seems that primary responsibility for individual members of staff and the duties allocated to them rested sith the manager, Mr Hovell. He told the Commission that at about the time of the retrenchment of the complainant it had become necessary to effect further savings in the sales and credit areas. To this end, a decision was taken to retrench three people. The difficulty was which three should be selected. In the outcome, the complainant and two others were retrenched and Ms Vandervlies, formerly sales administrator in the Sales (Office Furniture) Branch, was transferred to the redesignated position of credit officer. Internal moves were made so that the sales and credit officers were working side by side on the upper floor of Namco's office facility at Noble Park. Although Ms Vandervlies had no experience as a credit officer, the Commission was informed that Mr Hovell himself assumed added responsibility in the area and Ms Vandervlies was seen as supervising the more junior staff working in the sales area .

It appears that the outcome of the moves as part of which the complainant's retrenchment occurred was not altogether successful. Ms Vandervlies only remained in the position until early in 1985, when she was transferred to another position in the company. After a period with temporary officers a new credit officer, Mr Andre Vander-Bayden, was

appointed as credit officer. Like the complainant, but unlike Ms Vandervlies, he had already had experience as a credit officer in the collection of accounts, clarification of disputes which may occur with customers and so on. He told the Commission that the position was specialised and that it involved a degree of autonomy (p.255).

The complainant described twice, in similar terns, the interview with Mr. Hovell during which she had been told of her retrenchment. She said she had given notice to the company in July 1984 that she was pregnant and that she intended to commence maternity leave in either January or February 1985, depending on her health. her intention was to return to Namco around July 1985 (p.39). Further, she had every expectation of return. The company told the Commission that a number of applications had been made by women employees for maternity leave and that none that Mr. Hovell had been aware of had not been granted (p.136), although on one occasion an applicant had decided of her own volition not to return to work. Thus it could have been expected that the complainant, had she not been dismissed, would have continued in employment until about January 1985, when she would have been granted maternity leave for a reasonable period.

The question of fact which the Commission has to determine is whether pregnancy was one of the matters by reason of which

the complainant was retrenched, even if it was not the dominant or substantial reason for the retrenchment. The complainant told the Commission that -

'On 29 october 1984, Geoff Hovell walked into my

office and closed the door. He said that I was to be

retrenched. I was stunned at first. He gave me my

pay packet and I asked him why and he said that it was

due to a restructuring. I queried that a little bit

and then he said to me, "Well, Marion, it is better I

retrench you now because you will be going in January

anyway so it is better that I do it now rather than

someone else. I queried his as to whether pregnancy

had played a part in this. When I asked him that

question, he looked down. He would not look at me and

said, "No" but it took him some time to answer that.

I knew then that it did play some part in it.'

In cross-examination the complainant substantially repeated this statement, and added that Mr Hovell had struck her as being fair but as being extremely nervous on this particular occasion (p.101).

Mr. Hovell, who was present during the whole of the proceedings, was asked by Mr Glick, for the respondent, whether he had any recollection of what occurred during the interview with the complainant on 29 october. He replied-

'Not really. I know for myself that I would have been nervous, I would have been upset. Marion, like all the people who work for me, I believed had done reasonably good job - does to this day. With regard to anybody we had been through a fairly torrid 4 years of retrenching, reducing staff, moving people around it was quite an upsetting period, yes. I would have been upset."

.........................

'Was there any discussion of pregnancy?........

I do not know.'

Thus there is a clear statement by the complainant that she believed pregnancy had played a part in her retrenchment and had raised the issue with Mr. Hovell. On the other hand he, as the officer directly responsible, did not deny Ms Erbs' account but said he could not recall this part of the discussion, but explained the retrenchment on grounds of the need to restructure the operation. There is a partial conflict in the evidence on this point.

Only two other persons appeared likely to be able to assist the Commission in determining the extent to which pregnancy was a factor in the retrenchment - the general manager, Mr Reid, and the person who in effect succeeded the complainant, Ms Vandervlies. It will be recalled that Mr Fickling had ceased to be employed by Namco about 1 month before the date of the complainant's retrenchment. He said he had no part in the decision to retrench Ms Erbs, and Mr. Hovell confirmed this (p.147).

Mr Reid confirmed the assessment of the complainant as being an intelligent person, though possibly capable of being somewhat abrupt in her dealings with people. But he said he did not know her well enough to make judgments about her capacity. When it came to the question of retrenchment, he

said he had agreed to the proposal that there be a reduction of three persons and that he had agreed with the proposals made by Mr Hovell for a restructured team. But he had not turned his mind specifically to the persons to be retrenched and the complainant's pregnancy was not an issue in his mind (pp.206 and 216).

Ms Vandervlies was not present during the retrenchment interview with the complainant. Her evidence was to some extent, and understandably, confused as to details of the events which occurred on Monday, 29 and Tuesday, 30 October, including as to whether she felt she had any option but to take the position offered to her (pp.244 and 245). She did not raise the matter of the complainant's pregnancy with Mr Hovell and it was not raised with her (pp.242 and 244).

In cases such as this, where motives are involved, no relevant documentation exists, and the evidence is inconsistent, judgments have to be made to establish the balance of probabilities. The Commission must balance the clear sense of the complainant that pregnancy was a factor in selecting her for retrenchment with her statement that Mr Hovell had apparently reluctantly said it was not, and the statement by Mr Hovell, although he could not recollect any details of the

interview when he conveyed the decision to the complainant, that pregnancy was not taken as a factor (p.147). The Commission finds more credible the evidence of Ms Erbs. If her account had not happened, we think it unlikely that Mr Hovell would not recollect at least that it was not true, even if he could not recall precisely what was said.

The problem is compounded by the fact that it may well have been that an error of business judgment was involved in that Namco appears to have thought no experienced credit officer was required, but later appointed one. Indeed, at about the very time the complainant would have resumed duty after her maternity leave, and after a series of temporary arrangements which commenced with the appointment of Ms Vandervlies, the company decided it was necessary to employ a person with experience in credit work. These developments, taken together, lead the Commission to the conclusion that factors other than the simple need to reduce staff were present when decisions were taken who precisely were to be retrenched.

The evidence also establishes the following additional factors which bear on this question:

1. There was a singular contemporaneity of the

complainant's notification of her pregnancy and her

dismissal and nothing about her future with the

Company had been mentioned when she had given the

notice.

2. In terms at least of its expenses on the respective

salaries and other costs of employment of the

complainant and Ms Vandervlies, the respondent saved

little money by the dismissal of the complainant.

3. At all relevant times, the respondent has always had,

and had a need for, a competent, efficient credit

officer, however labelled.

4. The respondent had been concerned about its debt

position for some time prior to the complainant's

dismissal. The complainant (though apparently a

tough, even occasionally abrupt person) had

successfully assisted the company to reduce the number

of its debtors, the average delay in payment of their

debts, and the total size of their indebtedness to the

respondent. These were important matters to the

company and it rightly regarded these achievements of

the complainant as significant.

All these circumstances make it unlikely, it seems to us, that all other factors being equal, and the complainant's pregnancy and approaching maternity leave aside, the respondent would

(a) at this critical time for it

(b) have preferred as its credit officer

(c) a person who was inexperienced, untried and

untrained in this area

(d) to an experienced, to competent and proved

operator

(e) who had been performing successfully and to

its apparent satisfaction.

From its consideration of the evidence, the Commission therefore finds that pregnancy was a reason, indeed a not insubstantial reason, for selecting the complainant for retrenchment rather than any of the other employees who were not pregnant and might otherwise have been retrenched instead of her. To the extent that pregnancy was a factor, the retrenchment was not reasonable in the circumstances. Accordingly, it finds that in retrenching the complainant, the respondent company discriminated against her on grounds of her pregnancy and thus committed an unlawful act under section 14(2)(c), taken with sections 7(1)(a)(1) and 8, of the Sex Discrimination Act 1984.

D. COMPENSATION

The complainant claims compensation under section 81(1)(b) of the Act in respect of

1. Pro-rata long service leave;

2. Loss of earnings for the period of 13 weeks from

retrenchment to planned maternity leave (29 october

1984 to 28 January 1985);

3. Loss of earnings for the period from planned return to

work (about 29 July 1985) to 27 July 1986;

4. Seniority retroactivity; and

5. Injury to feelings and humiliation suffered.

Counsel for the respondent has not challenged the figures produced by the complainant. our determination under each heading is therefore as follows:

1. The Commission does not believe that the first head of

claim is appropriate in this case. As stated earlier,

the complainant had worked for Namco for three years

and four months when she was retrenched. Ordinarily

she would not have received long service leave for

more than six and a half years thereafter. The

contingencies that may have occurred in that period to

deprive her of that leave are far too uncertain to

allow anything under this heading now. In addition,

long service leave is paid in respect of work done.

The complainant has not been working for much of the

period since she was retrenched, and we propose to

compensate her for part of that unemployment. This

claim therefore overlaps other areas of compensation

to be granted.

2. The complainant gave evidence that she planned to

commence maternity leave on 28 January 1985, that her

salary at the time of her retrenchment was $392 gross

($298 net) per week, and that she earned $1,156 gross

($1,066 net) from part time employment during the

period November 1984 to January 1985. She was

therefore substantially out of pocket in a period when

she would, without dismissal, have normally been paid

her full salary ($5,096 gross), including if she was

due for her holidays in the December-January holiday

period, her 17% holiday loading (for which no claim is

here made). This loss is directly referable to the

unlawful discrimination. The Commission therefore

determines that $2,808 should be paid to her by way of

compensation in respect of loss of salary under the

second head of damages claimed, being the approximate

net amount she would have earned in the 13 seek period

less $1,066 (net) for the part time earnings she

actually received.

3. In respect of the third claimed head of compensation,

the Commission was advised that on 28 october 1985

(whilst the complainant was raising efforts to obtain

employment in her own (administrative) field at

various levels), she was offered a position as

secretary/typist. She refused it as it did not offer

her any opportunity of developing her chosen career.

We take into account both the difficulties of

obtaining employment in her chosen field from her

position as an unemployed person and those associated

with her particular situation as a new mother.

Nonetheless, in the particular circumstances of this

case, the Commission believes that six months from

her planned return to work on 29 July 1985 was a

reasonable period for the complainant to obtain

employment. In our opinion, by 27 January 1986 she

should have mitigated her loss by obtaining full time

employment in another field, even if temporarily while

she sought the type of work she preferred. There is

sufficient evidence available that Ms Erbs is a

capable person, who should normally be able to obtain

employment within a reasonable period of commencing to

sees it. The Commission thus determines that the

complainant should receive $7,202 for loss of salary

for the period 29 July 1985 to 27 January 1986,

calculated at the rate of $277 per week (the net rate

of pay of the new incumbent in the former position

with the respondent) for 26 weeks, less $320 actually

earned by the complainant in part time employment i.e. $6,882.

4. The Commission sees no basis for determining that any

compensation should be paid to the complainant for

loss of seniority, whatever that might mean in this

case, where no evidence was led on the subJect.

5. The Commission heard evidence that the complainant's

professional and personal life were deeply affected by

her dismissal, that she was very distressed to be

suddenly unemployed with a baby on the way, and that

she has suffered considerably by her difficulty in

obtaining suitable employment after the baby was born.

assessment of this type of damage is notoriously

difficult but taking all the circumstances of the case

into account, the Commission believes that a figure of

$11,000 would be fair compensation under this heading.

On the other hand, the Commission has, following the hearing, been advised by consent that upon retrenchment, Ms Erbs received a total payment comprising $3,314.40 net ($4,777.32 gross) by way of unpaid wages and other benefits and a net sum of $4,912.70 ($4,984.50 gross) from the respondent's superannuation fund. Of these sums, the Commission considers that net payments aggregating $3,536 made by the respondent by way of compensation for retrenchment, and which would not have been paid if Ms Erbs had remained in their employment, should be deducted from the compensation determined so as to avoid double payment. (This calculation is based on the best estimates net of tax we are able to make from the gross figures supplied to us in respect of salary in lieu of notice, salary for years of service and the retrenchment benefit component of and in connection with the superannuation payment.)

The total compensation which the Commission considers Ms Erbs should receive is thus $17,154.00 arrived at as follows:

Loss of net earnings -

29 october 1984 to

28 January 1985

(Less moneys actually earned) $ 2,808

Loss of anticipated net earnings

29 July 1985 to

27 January 1986

(Less moneys actually earned 6,882

General damages 11,000

$20,690

Less Estimated net sum of relevant

payments received on

retrenchment 3,536

$17,154

MR. EINFELD Q.C.

I agree with ny colleagues in all respects but wish to add a few additional personal observations on the question of onus of proof in inquiries conducted by the Commission under the Sex Discrimination Act. I recognise that in many cases, difficulties of actual direct proof can be overcome by the availability of inferences properly able to be drawn from the evidence (Fenwick supra at 76,462; Khanna v Ministry of Defence (1981) ICR 653 at 658; Woon v R [1964] HCA 23; (1964) 109 CLR 529 at 539 per Taylor J. and at 541 per Windeyer J; Casswell v Powell Duffryn Associated Collieries Ltd. [1940] AC 152 at 169 per Lord Wright; Swalwell v Government Insurance Office of N.S.W. [1965] NSWR 515 at 516-7 per Sugarman J.). However, this is a function which must be undertaken in many situations whether a legal onus of proof exists or not. It happens in daily life, both domestic and commercial. It certainly happens in administrative inquiries of many kinds where no onus of proof lies.

The Commission is an administrative, not a judicial, body which can be constituted by a majority of non lawyers (s.60 of the Act). It "holds inquiries" into complaints (s.59(1)); it does not conduct or constitute cases or trials. It may

involve itself directly in attempts to settle or resolve complaints under inquiry and is obligated to try to do so if possible (s.73). It is not bound by the rules of evidence and it may inform itself on any matter by any means it chooses (s.77(1)(a)). It proceeds without formality, technicality or undue delay ( s.77(1)(b)) and arranges its procedures accordingly (s.77(1)(c)). It does not pronounce verdicts, judgments or decisions. It merely dismisses complaints or finds them substantiated. It does not make awards or orders; it merely makes determinations which are not binding on the parties (s.81). It does not enforce its findings and determinations or punish non compliance therewith. These functions are performed by the Federal Court (s. 82).

It seems to me unlikely that Parliament had in mind when enacting these provisions the strict imposition by the Commission of an onus of proof on one party, usually the moving party, as applies in true civil litigation. It seems to me more likely that the Commission's intended task is to try by all reasonable means at its disposal to discover and satisfy itself as to the facts; i.e. to inform itself on the complaint as fully as possible, perhaps preferably per medium of the parties but if necessary and in appropriate cases, through counsel assisting the Commission, with a view to determining the likely truth. I am not attracted by an interpretation of the Act which would provide the only

potential alternative of having to arbitrate between opposing parties and determine complaints only on the issues raised and evidence submitted by strictly adversarial interests.

This alternative construction also seems to conjure up the possibility that a respondent could make an application, at the conclusion of the evidence for the complainant, that a complaint has failed and must be dismissed on the ground that there was no prima facie evidence of unlawful discrimination. I doubt that the Act was intended to be so construed.