Vel v Dept of Defence [1990] HREOCA 19 (31 December 1990)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975

PETER VEL COMPLAINANT

DEPARTMENT OF DEFENCE RESPONDENT

REASONS FOR DECISION OF SIR RONALD WILSON (PRESIDENT)

Hearing in Sydney on 3 September 1990; 15-16 October 1990; 5, 6, 7, 11, 12 December 1990.

The complainant appeared in person, assisted by his daughter, Ms Christine Vel.

The respondent was represented by Mr R J Weber of Counsel.

1 HISTORY

The complainant is an Australian citizen of Greek national origin. He commenced work with the respondent as a storeman on 8 December 1977. His employment was terminated on 8 May 1985. On 3 July 1986 he complained to the Anti-Discrimination Board of New South Wales of unfair treatment by the respondent in the course of his employment and in respect of his dismissal. The President of the Board, as delegate of declined to deal with the Race Discrimination Commissioner, the complaint on the basis that it was lacking in substance. on 13 April 1988 the complaint was referred to this Commission at the complainant's request in accordance with s.24(4) of the Racial Discrimination Act 1975 ("the Act"). on 14 June 1989 the then President of the Commission handed down his

decision on an application by the respondent pursuant to s.25X of the Act, for summary dismissal of the complaint. The application was dismissed and the matter referred to another Commissioner for hearing. I commenced the hearing on 3 September 1990 and the evidence was concluded on 12 December 1990.

2 THE ISSUE

Although the hearing has required extensive evidence of many incidents, occurring in the course of the employment of the complainant, including the circumstances of the termination, I do not find it necessary to consider that evidence in any detail. This is because the issue is not whether any particular alleged act of discrimination occurred but whether any such act, if it did occur, was dominated by racial considerations. The onus rests on the complainant to show, not merely that his national origin played some part in the conduct in question but that it supplied the dominant reason for such conduct (cf. s.18 of the Act). So far as the alleged discriminatory acts of the respondent are concerned, the detail of those acts is described fully by the former President in the decision to which I have referred. Much of the evidence of the complainant in this regard is contested by the respondent and many witnesses have been called on its behalf.

The statutory framework to the case is provided by s.15(1) of the Act. So far as relevant, that provision may be paraphrased as follows.

"It is unlawful for an employer -

to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description;

or to dismiss a second person from his employment,

by reason of the race, colour or national or ethnic origin of that second person."

3 CONSIDERATION OF THE EVIDENCE

There may be room for argument as to whether the complainant was afforded the same terms of employment, etc, as the other storemen. The issue is attended with some complexity because even if the view be taken that he spent more time on the sweep machine in the early years than other storemen and consequently was denied an opportunity to engage in general store duties, there is a suggestion that he enjoyed the work. Certainly, there is no evidence of any problem or complaint in that regard prior to 4 September 1980. Again, there is evidence that he became very possessive of the task of petrol bowser attendant. In October 1982 he submitted his resignation rather than be transferred from the petrol bowser to the storeroom. He was subsequently transferred to Victoria Barracks but when he was offered a return to the petrol bowser duties at Zetland in 1983 he rejected it. I believe that in the last mentioned incident, there is a clue to the whole problem surrounding his employment from 1980 onwards. The complainant rejected the offer because of the condition accompanying it, namely that the complainant should undertake to accept the reasonable directions of management. There is no doubt that the complainant was a good worker. He worked hard, indeed so hard that it caused him to be viewed with some apprehension by his fellow workers. However, problems arose because he asserted a right to perform his work in the way that he believed was best and this sometimes made things difficult for his supervisors. In the earlier years at Zetland, when he was working on the petrol bowser, he appears to have enjoyed a certain amount of freedom in this regard, but resistance developed both from his supervisors and from the union. To them this kind of freedom could not be tolerated without lowering respect for the authority of middle management and arousing unrest and jealousy among his fellow workers.

It may be that on occasion the complainant was treated by some of his immediate supervisors without much regard for his interests or sensitivity to his excitable temperament - for example, in the failure to ensure his competence for general store duties, the time taken to effect the repair to the retractor-hose mechanism of the bowser and the question of the hours during which petrol was to be served.

It should be said that the complainant's allegations of discriminatory treatment following his re-engagement at Victoria Barracks in May 1984 are misconceived. He had resigned earlier in the year and his resignation was accepted. Thereafter, as a result of ministerial intervention, he was re-engaged. But there is no basis in the evidence for construing his return to employment as a resumption of the earlier hiring. It marked a fresh beginning. In the course of a telephone conversation, he agreed to accept a position as a part-time cleaner at Victoria Barracks. Unfortunately, the fresh start carried the consequence that there was no accrued entitlement to sick leave to be called on when the complainant became ill.

I should also offer a comment on the complaint focused on the hunger strike and the complainant's removal to hospital. It was certainly thoughtless and unfortunate that when the problem arose members of the complainant's family were not contacted and given an opportunity to encourage him to leave the premises quietly and thus relieve the situation. But notwithstanding the somewhat officious appearances, I am satisfied that Dr Grace acted in good faith and with lawful authority in doing what he did. It was not discriminatory. Furthermore, it followed a series of incidents of irrational behaviour on the part of the complainant and this provides some explanation for the course of events.

I am not here to determine whether the complainant was treated unfairly by the respondent. Whatever may be said as to the merits of these various matters of complaint, including the termination of the employment, the fundamental issue is whether the complainant has shown that any discriminatory conduct occurred by reason of the race, colour, national or ethnic origin of the complainant. I have no hesitation in holding that the complaint fails at this point. There is no evidence of any kind to support the allegation of race discrimination. The evidence shows the complainant to be a person who from 1980 onwards frequently recorded his grievances in writing and furnished that record to management. There is no suggestion, written or oral, that the complainant ever complained to his superiors that he was being victimised on account of his race or national origin. Nor is there any evidence of any racist remarks being addressed to him by anyone. The respondent's workforce at Zetland was racially mixed, with several different nationalities, including Greeks, represented. No evidence was tendered that would sustain an inference that any decisions of management or any other actions in relation to the complainant were racially motivated.

The first allegation that any of the events complained of by the complainant were the consequence of race discrimination was made in the course of investigation of his complaint to the Anti Discrimination Board of unfair treatment. The complaint was first made on 3 July 1986 - almost fourteen months after his dismissal.

I have considered carefully whether any alleged differential treatment that may have been meted out to the complainant was the result of latent or indirect racism. Certainly his poor command of the English language may have warranted at times a more sensitive, patient and flexible approach from management but I would not be justified in concluding that any racist motivation

was involved. In any event, I am quite satisfied that the dominant cause underlying his problems with management was his inability at times to accept direction unless it suited him. I believe the complainant has many admirable qualities but unfortunately this streak of independence, at least in the context of a large necessarily bureaucratic organisation such as the respondent, has been his undoing. He has my sympathy, but my duty is quite clear. The complaint of racial discrimination is not established. The complaint must be dismissed.

Dated this 31st day of December 1990.

RONALD WILSON

President