Shaw v Perpetual Trustees [1993] HREOCA 19 (10 September 1993)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H92/O44

Between:

Judith Mary Shaw

Complainant

and

Perpetual Trustees Tasmania Limited

Respondent

Reasons for Decision

of Susan Crennan Q.C.

Inquiry Commissioner

Hearing: Hobart, Tasmania

Date: 21, 22 and 23 June 1993

By a referral dated October 1992 the Sex Discrimination Commissioner referred this matter for an Inquiry by the Commission under section 57(1)(b) of the Sex Discrimination Act 1984 ("the Act").

The Complaint

The complainant alleges that the respondent breached the Act in a number of ways. First, she alleges that her dismissal from employment as a trust officer by the respondent was discriminatory notwithstanding that the reason given by her employer for her dismissal was that she was retrenched because of a downturn in business and she was "last on, first off".

Secondly, she alleges that she was discriminated against on the grounds of sex in that she was not made a member of the respondent's superannuation scheme until a year after commencing her employment whereas she had been told originally this would occur after satisfactorily completing a six month probation period.

Thirdly, she alleges she was discriminated against by reason of a male dominated office culture which excluded her from certain aspects of her employment, which exclusion she perceived as being referable to her sex.

Fourthly she alleges she was treated differently by her direct supervisor in his dealings with her by reason of her sex.

The Factual Background

The complainant had a long and successful career as a legal secretary. She also had accomplished successfully certain para-legal tasks such as conveyancing. There was no dispute on this issue.

In July 1990 she commenced employment as a trust officer with the respondent company. She did so at the specific request of the General Manager Mr. Brian May who had retained details of the complainant when she had made an earlier but unsuccessful application for such a job. The respondent Company had a small group of six trust officers

at the time when the complainant's employment commenced. Until comparatively recently only men had been employed by the respondent as trust officers. The complainant was in fact the third woman employed in this capacity by the respondent over recent years. She had some difficulties with her new position although the evidence was that she was improving at the time of her dismissal.

On 21 January 1992 the respondent's General Manager, Mr. May dismissed the complainant. She was given a substantial retrenchment package and advised that she had been retrenched because of a downturn in work and she was "last on, first off".

The Statute

Section 5(1) of the Act defines sex discrimination for the purposes of the legislation as follows:

For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection 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.

Section 8 provides:

A reference in subsection 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 by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

Section 14(2) provides:

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 the terms or conditions of employment that 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;

(c) by dismissing the employee; or

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

The onus is on the complainant to make out that the matters alleged by her are acts of discrimination on the grounds of her sex.

The Dismissal

The complainant gave evidence that she was not the "last on, first off" because other employees had commenced with the company after her. However she conceded that the respondent probably meant "last trust officer on, first trust officer off". Mr. May gave evidence that this was the meaning he intended. The complainant perceived her dismissal as related to her sex because a male trust officer who had been with the company for some twelve years received lenient treatment even though his productivity was low and he was often late for work. She saw this treatment as favouring him over her. She had not been told that this male trust officer had been ill and did not appreciate that despite illness he was a capable trust officer. The complainant also contended there was no downturn in office work although such a downturn was the expressed reason for her retrenchment. In fact the respondent's annual report for 1992 indicated there was a downturn in net profits in the 1991-1992 period and the evidence indicated there was a specific downturn in the volume of work in the Hobart office as a result of the opening of other branch offices at Glenorchy and Rosny.

Mr. May, whose decision it was to dismiss the complainant, gave evidence of the reasons for taking that decision. He said, and I accept his evidence, that he took a number of factors into account. The main factor was a downturn in the overall volume of work in the Hobart office. He also took into account the fact that the complainant was the least experienced of the small group of trust officers.

I do not find it established that the complainant was dismissed because she was a woman. A "last on, first off" principle is unobjectionable and not inherently unfair and unconscionable unless it exacerbates past discriminatory practices and is not shown to serve the employer's legitimate interests - Australian Iron and Steel Proprietary Limited v. Banovic and Others [1989] HCA 56; (1987) 168 CLR 165. In this case, the principle served the employer's legitimate interests in the context of a downturn in work in the Hobart office. Thus she has failed to establish unlawful dismissal within the meaning of section 14(2) of the Act.

Superannuation

In her original complaint the complainant stated that she believed that her entry into a superannuation scheme was delayed on the ground of her sex. She complained that she had been told at the preliminary job interview that superannuation would begin after the six month probation period. However, in evidence at the inquiry, the complainant conceded she was not suggesting that she was discriminated against by reason of not being accepted into the superannuation scheme until a year after her employment commenced. Rather she said she wanted to find out when the male employees began their superannuation.

Mr. May gave evidence the complainant was accepted into the scheme some nine and a half months after she commenced employment and that the timing of her acceptance into the superannuation scheme was governed by changes in the Federal law which created some uncertainty at the time about the continuation of the respondent's scheme as then constituted. The respondent's directors had under consideration a question of possibly closing the defined benefits plan to new members and continuing with a single accumulation plan. Three other females had their acceptance into the scheme delayed at the same time and for the same reason. This contrasted with the fact that Mrs. Moule, the other female trust officer employed by the respondent at a different time, had joined shortly after her probation period as had Mr. Bryant a male trust officer, who was a relatively recent appointment.

Whilst it is not entirely satisfactory to delay the acceptance of an employee who commenced employment at a particular time, so as to create a slight difference in conditions from those applicable to other employees accepted into the scheme, nevertheless the delay was not by reason of the complainant's sex. Therefore I find there was no unlawful discrimination within the meaning of section 14(2) of the Act arising out of these facts.

Exclusion/Male Culture

The complainant alleged that she was excluded from professional lunches, auctions, wage increases and study facilities at work by reason of her sex. Evidence from numerous witnesses indicated, that although she sincerely believed that in these matters she was treated less favourably than trust officers of the male sex, this was an unfounded belief. Male trust officers were not uniformly invited to professional lunches, were not uniformly given wage rises and did not always attend auctions. The only male trust officer who was undertaking exams at the same time as the complainant was told of study facilities at work whereas she was not. Mr. King who supervised such studies, acknowledged that this was so but explained that this was an oversight, which he remedied by offering to her the facility of studying at work in the future before she was retrenched. I accept the evidence that the omission to tell the complainant of study facilities at work was an oversight and was not caused by reason of her sex.

She also complained that she was unfairly singled out in relation to telephone calls to her mother. She conceded however that this was not because of her sex. This concession disposes of this aspect of the complaint for the purposes of the Act.

She also alleged the background to her perceived exclusion was a male-dominated office culture. In this regard she complained of a number of miscellaneous matters. one complaint was of remarks made by both Mr. Jenkins, the Chief Trust officer, and Mr. Strang, the accountant, in the context of the women in the office seeking to organise a women's lunch. Mr. Jenkins is alleged to have responded to a request for a little longer for lunchtime by saying "All you have to do is put your head down and your bum up" and Mr. Strang is alleged to have said words to the effect "We are here to make profits, not run women's lunches". I am satisfied both by the evidence of the complainant and corroboration by others that both remarks were made. Whilst some other women in the office were offended or annoyed

by such remarks, others were not. Furthermore, all women who were asked gave evidence of improvement in recent times in the office so far as the equality of women was concerned. The women in the office as a group did not find the incidence of such remarks made the working environment hostile and demeaning. The complainant showed a much higher level of sensitivity than the other women in the office. Without more than incidental offence, the remarks do not establish the existence of such a male-dominated office culture as to constitute an unfavourable condition of employment or a detriment and therefore unlawful discrimination within the meaning of section 14(2)(a) or (d) of the Act (or sexual harassment within the terms of section 28 of the Act). The question in circumstances such as these is whether a hostile and demeaning work environment is created by reason of persistent conduct of this kind, O'Callaghan v. Loder and the Commissioner for Main Roads [1983] 3 NSWLR 89. Isolated instances can conceivably achieve such a result but I find they did not do so in this case.

As part of a further allegation that there was a male-dominated office culture the complainant gave evidence of two incidents. The first was that on one occasion there was a video depicting a sexual act which she alleged male workers were watching upstairs. The second was an occasion when a Mr. Men cartoon, which was explicit and ribald, was placed on her desk. The evidence of a male office junior, was that the video was in fact a video game shown on the computer on one occasion only and it took approximately one minute. It was shown by him before working hours to one other man being considered the office computer "buff", the point of this being to demonstrate the technology of the computer graphics. Be that as it may, the complainant did not see the video and the office junior never repeated the conduct. There was no complicity in the conduct by senior management.

The evidence given by the same office junior concerning the Mr. Men cartoon was that the complainant had asked to see it after it had been the subject of discussion in the office. I accept this evidence as truthful and find the complainant underestimated the extent to which the cartoon would offend her. The junior failed in turn to consider the extent to which the cartoon would offend someone of Miss Shaw's sensibility. No other woman in

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the office was particularly upset by the presence of the video on the single occasion or the ribald cartoon. Whilst such incidents may give offence and could constitute a pattern of discriminatory conduct and/or harassment if they were examples of endemic office behaviour as in Hill v. Water Resources Commission (1985) EOC 92-127, such was not made out in this case. They were isolated incidents. The complainant has not established there was unlawful discrimination against her within the meaning of the Act arising out of these incidents.

Finally, she complained that the women's toilets were deficient because the door did not shut properly and there was, she said, no screen permitting unobserved changing in the toilets. She never complained to the company of these matters. None of the other women who gave evidence saw anything of which to complain in relation to the toilets. The air-operated door-closer needed minor adjustment which Mr May said he arranged after the complaint came to his attention. I find no unlawful discrimination against the complainant arising out of these circumstances.

Less Favourable Treatment

There was no dispute in the evidence that there was antipathy between the complainant and the Chief Trust officer, Mr. Jenkins. She claimed he treated her differently because of her sex. He did not seriously dispute that he and she did not get on. However he denied that he had been as rude as other witnesses claimed and he gave evidence that her difficulties at work were the result of her inability to function as a trust officer. He also admitted he was consciously trying to avoid rudeness now. Observers in the office gave evidence of numerous aspects of Mr. Jenkins' dealings with the complainant which were humiliating for her, such as Mr. King's evidence that Mr. Jenkins unnecessarily altered her work and Miss Chilcott's evidence that he checked on the complainant's whereabouts more frequently than he did for anyone else under his supervision. Further, Mr. Jenkins did not seriously dispute the complainant's evidence that he removed files from her office without any proper discussions with or explanations to her, which showed considerable lack of civility on his part.

The complainant was employed in the position of trust officer largely because of an incorrect and inflated assessment of her ability for that position, which was in turn based on

her high achievements in a different field. As matters turned out she needed a high level of assistance and supervision in order to discharge her duties and to acquire the relevant skills to a point where she could discharge those duties independently. Mr. King's evidence was that she was improving all the time in the learning and discharge of her duties and that it does take time to acquire trust officer skills.

Numerous witnesses agreed that although Mr. Jenkins was an outstanding employee in his area of expertise, he was difficult with all staff; he was particularly difficult, according to some, with female staff and especially difficult in his treatment of the complainant. It became known in the office, including to Mr. May, that relations between the complainant and Mr. Jenkins had become so fraught that Mr. King took over supervising her work in order to ameliorate her difficulties. Evidence was, however, given that Mr. Jenkins' zealousness in checking the work of those he supervised was part of his overall efficiency in his position.

I find that Mr. Jenkins was a truthful witness. I find the complainant was a truthful witness but overly sensitive in numerous ways. However, the case was not fought on the basis that Mr. Jenkins was anything other than hostile to the complainant, particularly since the respondent had dealt with the problem during the course of her employment by arranging for Mr. King to take over from Mr. Jenkins the main tasks involved in supervising her. Rather, the case was fought on the basis that the respondent resisted characterisation of Mr. Jenkins' treatment of the complainant as unlawful discriminatory conduct. Evidence was led that Mr. Jenkins was uncivil to others including males in the office on various occasions and that there was a personality clash between Mr. Jenkins and the complainant.

Bad manners without more or a personality clash without more do not constitute unlawful conduct under the Act. Fenwick v. Beveridge Building Products Pty. Ltd (1985) 62 ALR 275.

However the existence of a personality clash between Mr. Jenkins and the complainant does not exclude a characterisation of his conduct as hostile conduct based at least in part on her sex. It is sufficient under section 8 of the Act if the sex of an aggrieved

person is a reason for discriminatory conduct. It is not necessary that it be the substantial or dominant reason.

I find that Mr. Jenkins treated the Complainant less favourably than anyone else in the office and many aspects of this treatment displayed an absence of civility in the working environment to a marked degree. This caused a great sense of rancour, pain and humiliation in the mind of the complainant. At least one witness, who, incidentally, had known Mr. Jenkins since schooldays, agreed that 'victimisation' was accurate as a description of Mr. Jenkins' treatment of the complainant. Having had the opportunity to see both the complainant and Mr. Jenkins in the witness box and having heard their evidence and the evidence of many others in the office, I am satisfied that Mr. Jenkins exhibited a level of hostility and systematic lack of civility towards the complainant for which his evidence that she disappointed him in her capacity for the job is an insufficient explanation, although I accept it was one reason why he treated her unfavourably. I am also satisfied that a personality clash between them, whilst it may have been the dominant reason for his unfavourable treatment was not the only reason. I am further satisfied on the evidence that her sex was another reason why he treated her unfavourably. I am also satisfied that he would not have treated a male trust officer who similarly disappointed him in his capacity for the job in the same unfavourable, hostile and uncivil way even making allowance for personality clash. I am further satisfied that evidence that Mr. Jenkins was occasionally uncivil to male work colleagues does not detract from these conclusions based on his systematic treatment of the complainant. I emphasise however that the complainant's sex was only one of three reasons for his unfavourable treatment of her and possibly, although I am not obliged to conclude the matter, the least of the three.

Accordingly, I find Mr. Jenkins' treatment of the complainant constituted an unfavourable condition of her employment, alternatively a detriment, and thus offended against section 14(2). The respondent was aware of the discriminatory treatment. It had not taken reasonable steps to prevent it occurring. However it did take steps after a certain point to ameliorate the unfavourable treatment, through its employees Mrs. Hughes, Mr. King and Mr. May, which steps were in fact endorsed by Mr. Jenkins. Continuing humiliation for the

complainant was avoided by transferring the task of supervising her to Mr. King. Mr. May assisted in arranging this and Mrs. Hughes helped implement it.

Summary

Miss Shaw has established unlawful conduct within the meaning of the Act, insofar as Mr. Jenkins' treatment of her made her feel uncomfortable, unwelcome and victimised and was in part referable to her sex, although the other aspects of her complaint have not been made out. In the result, Miss Shaw is entitled to a declaration under section 81(1)(b)(iv) upholding the complaint and granting her compensation for the distress suffered by her as a result of her treatment by Mr Jenkins. In fixing the sum I have had regard to other awards under the legislation and I have taken into account the circumstances referred to above, including the fact that the period of time during which the complainant was subjected to less favourable treatment by Mr Jenkins was limited by the decision to move her away from Mr Jenkins' direct control. I fix a sum of $2000.00

Suppression Order

I continue orders made by consent during the proceedings pursuant to section 67(1) of the Act prohibiting publication of the names of two of the witnesses.

Dated this 10 day of September 1993.

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

SUSAN CRENNAN