Ssali v CSIRO [1993] HREOCA 26 (23 December 1993)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975

No. H93\036

Between:

Theresa Ssali

Complainant

and

Commonwealth Scientific and

Industrial Research Organisation

Respondent

Reasons for Decision

of Mrs Susan Crennan QC

Inquiry Commissioner

Hearing: Melbourne, Victoria

Date: 13, 14,15, 20, 21, 23 December 1993

Appearances: Mr M.Willoughby Thomas, of Counsel, for the Complainant

Mr C. McArdle, Solicitor for the Respondent

INTRODUCTION

This matter was referred for inquiry on 28 July 1993 pursuant to Section 24E(1)(b) of the Racial

Discrimination Act 1975 ("the Act").

The complaint of racial discrimination was made by Ms. Theresa Ssali, a Ugandan born Australian. She was employed as a librarian with the Commonwealth Scientific and Industrial Research Organisation ("CSIRO") in April 1990. Essentially Ms. Ssali alleges that between October 1990, when a Ms. Jeanette Elliott became her Line Manager, until the date of resignation on 24 May 1991, she was subjected to a campaign of racial harassment which was manifested by criticism of her communication skills and competence. She asserts she was discriminated against in the workplace by unfair deadlines, otiose tasks, unwarranted criticism and personal abuse in front of library staff and users. The case was opened before me on the basis that evidence led would result in findings of direct discrimination in breach of sub-section 9(1) and section 15 of the Act and indirect discrimination in breach of subsection 9(1)(a). After six days of hearing and 12 witnesses, the Complainant's case closed. The Respondent then applied under section 25X of the Act for a dismissal of the complaint.

On behalf of the Respondent, it was submitted that the complaint was frivolous, vexatious, misconceived and lacking in substance. The analysis of the evidence which was made on behalf of the Respondent approached the evidence in two ways. First, it was argued there was no evidence capable of establishing the Complainant's case under sub-section 9(1) and section 15 of the Act or of establishing the Complainant's case of indirect discrimination under sub-section 9(1)(a) of the Act. Secondly, it was argued that such evidence as was led in support of the Complainant's case was so unsatisfactory or unreliable that it should not be acted on other than to dismiss the complaint for lack of substance.

It is necessary to consider the evidence led in-chief on behalf of the Complainant in order to assess the Respondent's application under section 25X of the Act.

In broad terms, the witnesses, apart from the Complainant herself, who worked or had worked with CSIRO, fell into three groups. There were co-workers of Ms. Ssali who, in some respect or another, were able to give evidence relevant to library tasks; there were users of the library, many of whom had high professional qualifications in respect of their own fields of expertise and there were persons directly supervising or responsible for Ms. Ssali as an employee. These were Ms. Oakes and Ms. Elliott. In addition, evidence was called from a Mr. Bremault who had employed Ms. Ssali in the library at the office of the Commission for Equal Opportunity subsequently where she had performed satisfactorily.

Ms. Ssali was employed initially by CSIRO for the position of Librarian, within the Mineral and Process Engineering Division at a salary of $33,000.00 per annum. She was selected from a field

of 22 candidates. It was never in dispute that the CSIRO is and was at all relevant times an equal opportunity employer. The equal opportunity program for 1989/1990 was tendered in evidence and a Mrs. Quinn-Boas gave evidence of designing an E.E.O. Management Plan and a Profile of Staff tendered in evidence indicated many persons were employed by CSIRO who were born elsewhere than in Australia and who had a primary language other than English.

Ms. Ssali lived in Uganda for her first twenty-six years. She was a member of the Baganda tribe and her primary language was Luganda. She commenced learning English in secondary school and first came to Australia in 1976. She returned to Uganda but came back to Australia in August 1977 as a refugee from the regime of Idi Amin. She had a diploma of librarianship from the University of Makerere in Uganda and a Bachelor of Social Science and Librarianship degree from the Royal Melbourne Institute of Technology. Classes at the University of Makerere were conducted in English. She had worked for five years as a librarian for the Mental Health Department before applying for the position at the CSIRO She accepted the position when it was offered on the basis that she would be reporting to and supervised by Ms. Oakes who would be working in the library for fifty per cent of her time. Her perception of her job was that she was the deputy running the library and Ms. Oakes was to be the manager of the library.

Evidence from several sources indicated the library was in some disarray when Ms. Ssali arrived

and unfortunately Ms. Oakes, who in the normal course would have inducted her, was away from

work with a broken arm. Apart from short term assistance from Ms.Amoretti and Ms. Bold, Ms Ssali

found she was required to run the library without any assistance from Ms. Oakes who became increasingly involved with being Divisional Communication Manager.

There were probationary procedures for new workers at CSIRO which involved, relevantly, periodic assessment of performance and a procedure referred to as counselling in which perceived shortcomings in performance were addressed as consensually as it was possible to achieve. In the event that a new worker was not considered capable of the position to which he or she was assigned, the employment was annulled under a particular procedure.

There were numerous discussions between Ms. Oakes and Ms. Ssali about her written communication skills. There was also evidence of altercations between Ms. Ssali and Ms. Oakes which Ms. Ssali described as degrading and patronising but which Ms. Oakes explained were occasions where her frustrations over Ms. Ssali's poor performance got the better of her.

There was detailed evidence about numerous incidents such as research tasks given to Ms. Ssali which she may have found difficult because of her lack of acculturation with CSIRO and which others such as Ms. Oakes would have regarded as relatively straightforward. Certainly Ms. Ssali seemed to receive little assistance or guidance with such tasks.

As her time with CSIRO progressed there was an increasing focus on her written communication skills. Dr. Bavin, a linguistics expert familiar with Ms. Ssali's primary language Luganda, gave evidence of distinctive aspects of Ms. Ssali's speech. She expressed the opinion, as an expert that, Ms. Ssali's spoken English was very good and her voice was an educated voice. When cross-examined on certain samples of written work she remarked that certain errors seemed no more than typing errors.

Finally, in April 1991 Ms. Ssali was asked to resign to spare her any embarrassment arising from an annulment. It was essentially agreed by Ms. Oakes and Ms. Elliot, both of whom appeared truthful witnesses, that Ms. Ssali was asked to resign because although she was a good operational librarian, she was not equal to the managerial tasks which came to be expected of her. There was an indubitable element of unfairness in the situation because she had been taken on as a librarian on the basis that Ms. Oakes would be the manager and it was only during the course of Ms. Ssali's employment that the demands upon her evolved to the extent that she was found wanting in relation to managerial tasks, never originally specified to her. That the situation was indubitably unfair is borne out by the fact of a Petition taken up on her behalf and the evidence of numerous library users such as Dr. Jenkins, Roy Lovel, and Graeme Thornton to the effect that her operational skills were of a high order. Indeed a librarian in another division Ms. Carolyn Larsen confirmed Ms. Ssali's operational efficiency. The unfairness is also borne out by the fact that Mr. Bremault gave evidence of good quality written work and entirely satisfactory operational work in the current employment. The unfairness is also borne out by the fact that both Ms. Oakes and Ms. Elliot were upset by the sequence of events and CSIRO's own advocate urged me not to treat the case as one of unfair dismissal.

The advertisement and the duty statement for Ms. Ssali's position states that the position would be under the general supervision of the Communications Manager for the CSIRO Division of Mineral and Processing Engineering, Ms. J. Oakes. Additionally, the recommendation for appointment of Ms. Ssali to the position prepared by the selection committee dated 6 February 1990 states that the position is to "assist" Ms. J. Oakes in providing library services to the Division.

Ms. Ssali had the reasonable expectation that half of Ms. Oakes' working time would be spent in the library. As it turned out when Ms. Ssali commenced work, Ms. Oakes was on leave and had broken her arm, so that her return date was delayed. Moreover, her job changed, so that she was unable to spend the anticipated time with Ms. Ssali. From April to December 1990 Ms. Ssali worked in the library largely unassisted. The evidence revealed that during this period the minimal assistance was provided in the form of clerical support rather than more senior supervision. This was clearly unfair, having regard to the fact that Ms. Ssali needed assistance in the more professional aspects of librarianship.

Ms. Ssali's first probation assessment was conducted by Ms. Oakes on 7 August 1990. Ms. Oakes gave evidence that she tried to be as constructive as possible in this probation report.

Ms. Ssali's oral communication skills were assessed as adequate. Nonetheless, written communication was identified as a potential weakness, as were time management, prioritising, management and decision-making. Ms. Oakes commented as follows:

" 1. Despite Theresa's years of working as a librarian, I suspect she has not been given an opportunity to always develop in all aspects of the profession. This lack of experience appears to be contributing to any difficulties being experience (sic) now.

2. Theresa has been working in a difficult situation, without clerical support. The appointment of clerical assistance should release her to act at the professional level required of a Lib.2. A combination of formal and on the job training should benefit Theresa greatly."

Ms. Ssali responded to the probation report and identified points of disagreement. As a consequence, on 10 September 1990 a discussion was held between Ms. Oakes and Ms. Ssali concerning the probation report and Ms. Ssali's comments. It was agreed that Ms. Ssali would attend appropriate training to improve her written communication skills. On the notes made of this discussion Ms. Oakes noted that Ms. Ssali "enlisted the assistance of a member of her family to formulate her written comments on her probationary report". Ms. Oakes said in her evidence that this alarmed her and that as a consequence she began to test whether Ms. Ssali was taking work home to her husband to assist her with written submissions. Ms. Ssali was unaware of the reason for these requests and saw them as unreasonable given the fact that she was on her own in the library.

In September 1990 Ms. Janet Elliott took up the position of Commercial Manager of the Division

of Mineral and Processing Engineering at CSIRO. One of her duties was as a line manager responsible for Ms. Oakes and Ms. Ssali. were responsible to her. Ms. Oakes gave evidence that in September 1990 she had a conversation with Ms. Elliott in which she expressed concerns regarding Ms. Ssali. Ms. Oakes said that she was instructed to keep notes and it was her understanding that the notes were to substantiate any case for annulment.

Examples of some of the notes kept by Ms. Oakes are as follows:

1. "Asked TS the state of my order for speaking out tape - book. Given to her on 13.9."

Still not ordered (a month)

Australis package sent to library marked for my attention. See how long it takes for TS to give it to me."

2. "Discussions with TS. She says shelving is arriving on Tuesday, the 30th. She wants me to ask AA [Angela Amoretti] to work on Wednesday instead of Thursday this week so they can re-shelve library collection. I asked if she considered this a priority especially in the light of her recent complaints re no time/support. Was everything else up to date. TS replied, 'No, lots of inter-library loans and cataloguing'. I said that Genevieve and I did the same thing, we worked back a couple of nights till 8 and 9 approximately or on the weekend. To which she replied she can't do this as she has children to pick up etcetera. Again, where is the prioritising?"

The records kept on Ms. Ssali by Ms. Oakes support the view that they were kept with an annulment in mind because they only present a negative picture of Ms. Ssali's performance. Ms. Oakes told the Commission that she only recorded negative comments made about Ms. Ssali by Mr. Kent, Ms. MacMillan and Angela Amoretti and not the positive ones made by Mr. Jenkins, Mr. Lovel and Mr. Thornton. These latter members of staff had told Ms. Oakes that they had no problems with Ms. Ssali's communication. This is clearly unfair to Ms. Ssali and would have presented an unbalanced picture of Ms. Ssali's ability to comply with the usual requirements for a librarian and implied the imposition on Ms. Ssali of unreasonable conditions. Ms. Oakes was unable to give a satisfactory explanation for these omissions.

Following the first probation report, Ms. Ssali made a formal request to attend a six month course in communication skills and report writing at Monash University. This was denied to her by Ms. Elliott and she was advised that CSIRO would not support the course as she was expected to have those skills. Ms. Elliott made this comment to Ms. Oakes in response to the request:

"I am particularly concerned that a professional member of staff should be needing to spend official time in attending courses to address gaps in what I would consider to be her essential tools of trade. I would appreciate your comments please. JE. "

It appears that little consideration was given to the possibility of replacing Ms. Oakes with another part-time supervisor, or transferring Ms. Ssali to a more suitable position in one of the other Divisional libraries. Additionally, the evidence demonstrates a lack of understanding of EEO principles with respect to employees whose primary language is not English. The CSIRO Equal Employment Opportunity plan for 1989, 1990 and 1991 states as follows:

"Equal employment opportunity (EEO) has two aims: (a) to take appropriate action to eliminate unjustified discrimination in relation to employment matters and (b) to take measures which will enable persons in four designated target groups to compete for appointment, promotion and transfer and to pursue their careers as effectively as any other persons. The four target groups are: women, Aboriginals and Torres Strait Islanders, the migrants and their children of non-English speaking backgrounds and persons with disabilities.

Career planning and guidance for women is being stepped up in divisions. In one division a survey was conducted to determine the nature of barriers which exist for staff with non-English speaking backgrounds. Work-place English language programs for NESB staff are being negotiated through a university for a major CSIRO work site while there are many instances of assistance being given in study and other education programs for employees in target groups.

Training is gaining a higher profile. The performance review and development process (a major SEP initiative) which affects all staff has identified many of the areas where training would benefit an employee in a target group ..."

Both Ms. Oakes and Ms. Elliott stated in evidence that these policies were not taken into consideration when discussing Ms. Ssali's situation.

For a complainant to substantiate this complaint, two elements must be established on the balance of probabilities. The first element is that there must be conduct for which the respondent is responsible which discriminated against the complainant and secondly, a reason for the discriminatory conduct must be referable to the race of the complainant.

In dealing with an application under section 25X of the Racial Discrimination Act 1975 (Cth), Sir Ronald Wilson said in Assal v. Department of Health, Housing and Community Services (1992) EOC 92-409 at p.78,900:

"A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

...

It is possible that a complainant's case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry. I believe it may be inappropriate in some cases to relate the criterion of "lack of substance" to the complainant's prospects of success at all. It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer for the respondent."

The evidence in this case indicates that Ms. Ssali was dismissed from her job because she lacked the perceived managerial skills and her excellent operational skills were considered insufficient. There was no evidence that the fact of her race caused or even partially caused that dismissal therefore, there is no case to answer in respect of her allegation that the dismissal was an act of direct racial discrimination.

Whilst there is no evidence of direct discrimination, there is evidence of indirect discrimination. Section 9(1A) of the RDA provides as follows:

Where

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, be persons of the same race, colour, descent, national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life - the act of requiring such compliance is to be treated, for the purposes of this part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

Indirect discrimination arises out of a refusal to recognise and accommodate difference. The concept of indirect discrimination detects inequality by examining practices and policies to see if they have a disparate impact on certain groups. Different racial and ethnic groups have different skills and qualification levels and the ways in which people approach problems and interact with other people may differ according to their ethnicity.

Ms. Elliott's refusal to support Ms. Ssali's attempt to improve her written communication skills amounts to, in my view, indirect discrimination. The requirement imposed by Ms. Elliott and thus, by CSIRO, was that Ms. Ssali should have high level written communication skills. As a person whose primary language is not English, but who was otherwise capable of doing the job, it was unreasonable not to support her in her attempt to improve this skill.

In addition to Ms. Oakes' reporting of negative comments to the exclusion of balancing and positive comments there is also evidence of Ms. Oakes treating Ms. Ssali in a patronising manner. Evidence was given by Ms. Nanette Bold that Ms. Oakes had treated Ms. Ssali in an uncivil manner in front of her in the library. Her evidence was that following a meeting between Ms. Ssali and Ms. Oakes, Ms. Oakes followed Ms. Ssali into the library and badgered her about some course notes that Ms. Oakes wanted returned to CSIRO. Ms. Bold said that Ms. Oakes had also been uncivil to her, but it was never in public. Ms. Bold also said in evidence that when she started working in the library that Ms. Oakes had made some negative comments regarding Ms. Ssali's ability to supervise staff. Mr. Barry Jenkins also gave evidence that Ms. Oakes had humiliated Ms. Ssali in public. Ms. Oakes, who I have found already was a truthful and helpful witness, could not do more than point to her frustration as an excuse for these events.

There is also evidence of Ms. Elliott treating Ms. Ssali in a patronising way. By March the annulment procedure was well underway. Ms. Elliott gave evidence that by 26 March Ms. Ssali had given her an understanding that she would resign on that basis. Ms. Elliott would suspend any action already on foot to have her appointment annulled. She said that she was not seeking to pressure Ms. Ssali to resign, but if Ms. Ssali did not elect that course, Ms. Elliott said that she wanted to make it clear that she would have no option but to recommend the annulment. Subsequently, Ms. Ssali indicated to the Chief of the division that she did not intend to resign, and Ms. Elliott had a meeting with her during which she said to Ms. Ssali, words to the effect of, "Theresa, I understood you were going to resign. Now it seems from separate information you are pursuing a different course of action. I need to know what you are doing, because these actions are mutually exclusive; you can't do them both concurrently. Do you understand what I am saying?" She denied that she was questioning whether Ms. Ssali could understand English, but said that she wanted to ensure that Ms. Ssali understood the mutual exclusivity of the two actions.

Despite Ms. Elliott's assertion in evidence that her words and actions were not intended to offend or belittle Ms. Ssali, the relations between Ms. Ssali and Ms. Oakes and Ms. Elliott had deteriorated to such an extent, that her comment was more capable of appearing patronising and condescending than fair. Ms. Ssali, Ms. Oakes and Ms. Elliott found themselves in a very difficult position and all were highly sensitive to the potential in the situation for a perception of direct and overt discrimination. This led unfortunately to a lack of candour about Ms. Ssali's perceived lack of managerial skills. It was a clear desire to avoid direct discrimination which led to indirect discrimination in preference to candour. This is most regrettable for all concerned and explains why all those who played a major role were to varying degrees, emotionally upset by the events.

As far as the respondent's application pursuant to section 25X of the RDA is concerned, I am of the view that there is a case to answer in terms of indirect discrimination under section 9(1A) of the RDA. It follows from these reason that I decline to dismiss the plaintiff's case pursuant to the application under section 25X.

Dated this 19th day of August 1994.

Susan Crennan Q.C.

Inquiry Commissioner