Dobrzynska v Aust Telecommunications Corp [1990] HREOCA 1 (6 April 1990)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

STANISLAWA DOBRZYNSKA COMPLAINANT

AUSTRALIAN TELECOMMUNICATIONS RESPONDENT

6 APRIL 1990

REASONS FOR DECISION OF SIR RONALD WILSON, PRESIDENT

This is an application by the respondent that the Commission exercise the power conferred by s.79 of the Sex Discrimination Act 1984 to dismiss a complaint of discrimination against the complainant by the respondent when dealing with two applications by her for promotion in May 1986 and August 1986 respectively.

At the time of the alleged discrimination, the complainant was employed by the respondent as an Engineer, Class 2. On 5 June she applied for a position as a Temporary Engineer, Class 3. She did not gain an interview and was not appointed to the position. on 2 August 1986, she applied for a position of Temporary Engineer, Class 4. The complainant and four male applicants were interviewed. One of the male applicants was appointed.

The complainant alleges that on each of these occasions she was denied promotion because of her gender. In neither case did she appeal to the Promotions Appeal Board. Her complaint was originally lodged with the Anti-Discrimination Board of New South Wales as agent for this Commission. However, after commencing an investigation, the President of the Board formed the opinion that the complaint was lacking in substance and discontinued the investigation.

The respondent now seeks a dismissal of the complaint for the same reason.

Having read all the materials and listened to submissions from the complainant and from counsel for the respondent, I have come to the same conclusion as the President of the Board.

I have formed a favourable view of the complainant. I believe she is a woman of considerable gifts. She appears to have enjoyed a successful professional career until she entered into the employ of the respondent in the late sixties. However, her twenty-two years with the respondent were less successful, leaving her oftentimes disappointed and frustrated. After receiving early promotion to Engineer, Class 2, there was no further promotion and she was moved from section to section. I believe there were two reason for this dismal record: the first was that her capacities and experience did not match fully the requirements of the work to which she was assigned; the second was that a lack of facility in communicating in writing coupled with a seemingly imperious manner

rendered her relationships with other members of the staff more difficult than they might otherwise have been. Advice and correction, intended to be helpful, was taken as criticism and so became a source of distress.

Everywhere she went, she felt she was on trial. She had to prove herself. However this did not diminish her own conviction as to her worth. In 1984 she was invited to apply for a Class 4 position in a department in which a woman was in charge. But she did not act on the invitation because she considered the work beneath her. Her repeated failure to gain promotion which she considered appropriate had its effect. She became disheartened. This affected her performance. Towards the end of her service to use her own words - "I reduced my effort". She gave as her reason for not appealing to the Promotion Appeals Board on the last occasion she was passed over for promotion, in August 1986, that it was beneath her dignity.

On 5 April 1990, the day following the hearing, the complainant tendered, with my permission, additional material dealing primarily with matters in connection with the report of her examination by the psychiatrist in December 1986. It was this report that led to the complainant's retirement on ground of ill health. I have taken this material into consideration.

In my opinion the gender of the complainant was not a factor in the difficult work history with the respondent. I have no doubt that the complainant sincerely believes that her sex was the

reason for the treatment she received. However, I am satisfied that she is mistaken in this regard.

Among the materials there are two documents to which I refer to illustrate the conclusion I have reached. Neither document received any direct criticism from the complainant and I find each of them plausible and cogent. The first is a report of Mr Harant dated 10 May 1979. Mr Harant was an Engineer, Class 3. He was the complainant's immediate superior. The report includes the following passages:

"I must at the outset re-interate my earlier observation that I find Ms Dobrzynska a very dedicated officer, at all times bent on carrying out any instructions given to her; she is co-operative, works long hours, including weekends, without demanding remuneration for this ....

There is no doubt in my mind that her scientific knowledge and abilities are above average and her academic achievements support my view ....

On the other hand I have now - reluctantly - come to the conclusion that Ms Dobrzynska does not appreciate the difference between scientific and engineering solutions to the problems which concern the work in which this group is involved....

As mentioned in my earlier reports, Ms Dobrzynska has considerable communications problems. ..Unfortunately, this inadequacy becomes serious when she has to write telex messages or more extensive memoranda because it can and did lead to misunderstanding inside and outside the Section. ...Sometimes this causes misunderstanding which can only be resolved by referring back to her. She is inclined to misconstrue such consultations as criticism of her work and to get upset about them, although this is not intended....

She has difficulties in meeting any dead-lines, even where she sets them herself ....

After many honest attempts to assist Ms Dobrzynska to come to grips with the problems of field engineering I have now reluctantly come to the conclusion that she is not able to perform the type of work which is required by this group of the Radio Section. This could well be the result of her long previous research-directed activities which placed emphasis on very different

aspects of engineering.

I conclude by stressing once again that none of the above comments should in any way be construed as reflecting adversely on Ms Stasia Dobrzynska's personality - or her genuine efforts, to the best of her ability to carry out any task assigned to her".:

It is not necessary to cite at length from the second document. It is a report on the selection process undertaken in August 1986 in connection with the position for which the complainant was an applicant. The report details the duty statement for the position clause by clause, making a detailed comparative statement of the respective merits of the complainant and the successful applicant. The report leaves no doubt in my mind that the successful applicant was the more efficient officer and deserved to win the appointment. The report concludes with a summary as follows:

"Mr F was the preferred officer in all 6 Selection Criteria. Ms Dobzrynska was obviously insufficiently experienced in the production engineering discipline and was regarded by the selection panel as incapable of performing efficiently in the subject position. Due to her lack of relevant qualifications and experience and her poor performance at interview Ms Dobzrynska's claims that the selection breached provisions of the Sex Discrimination Act and that she was more suitably qualified and experienced is refuted in this instance".

Although the last sentence that I have cited may characterise the report as a self-serving document for the respondent, a fact which I have taken into account, nevertheless the detailed analysis contained in the report serves to confirm my conclusion.

In the end we must come back to the specific occasions to which the complaint refers. They occurred at a time when, as I have said, the complainant had reduced her effort. Indeed, I gained the impression when listening to her address that she did

not really wish to contest the failure of her applications for promotion in 1986. They were simply the expected result after many years of frustration and disappointment in a work environment where she was not able to produce the results expected of her. This, not her gender, was the problem. For these reasons, I find that the complaint is lacking in substance. It is therefore dismissed.

6 April 1990

R.Wilson