Gilroy v Curley [1995] HREOCA 1 (12 January 1995)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No: H94\44

Between:

JENNIFER JOY GILROY

Complainant

And:

JOHN CURLEY

Respondent

REASONS FOR THE DECISION OF THE PRESIDENT

(SIR RONALD WILSON)

Hearing at Sydney on 2 & 3 August 1994,

5 September 1994 and 6 December 1994

Appearances: Mr W. Keen represented the complainant

The respondent appeared in person

1. INTRODUCTION

This is an inquiry, pursuant to s.59(1) of the Sex Discrimination Act 1984 (Cth) ("the Act"), into a complaint referred to the Human Rights and Equal Opportunity Commission ("the Commission") in accordance with s.57(1) of the Act.

The complainant commenced employment in December 1991 as a security officer with a partnership consisting of two proprietary companies. One of the partners was Roseswan Pty Ltd, owned for all practical purposes by one Peter Michael Warren. The other was Wingking Pty Ltd, owned for all practical purposes by the respondent John Anthony Curley. The partnership did not trade under a business name. Rather than refer to the partnership companies by name, it is convenient to refer to Mr Warren and Mr Curley respectively or simply to "the partnership". The business of the partnership was the conduct of security patrols under licence from Justov Pty Ltd ("Justov") trading under the business name of Intellisec Security ("Intellisec"). The representative of Justov with whom the partnership dealt was its patrol manager Mr Brett Blackwood.

On 21 September 1992, the partnership between Mr Warren and Mr Curley was dissolved when Mr Blackwood cancelled the several licenses held by Mr Warren including the license held by Mr Warren in partnership with Mr Curley. That license was immediately granted to Mr Curley, this time in partnership with a Mr Paul Curtis. Later on that same day, Mr Curley terminated the employment of the complainant. The complainant was aggrieved by his action and lodged a complaint with the Commission against both Mr Curley and Mr Curtis, alleging that her termination was an act of sex discrimination contrary to ss.5(1) and 14(2) of the Act. The complaint was accepted by the Commission. Following investigation and attempted conciliation by the Sex Discrimination Commissioner, it was referred to the Commission for inquiry on 13 May 1994.

The inquiry came on for hearing in Sydney on 2 August 1994. However, Mr Curtis did not appear. Evidence was tendered that his present whereabouts were unknown and he had not been served with notice of the hearing. I thereupon ordered that his name be removed from the record as a party to the proceedings. The inquiry proceeded with Mr Curley as the sole respondent.

2. THE LAW

The material provisions of the Act are the following:

Section 5(1)

" 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 14(2)

"It is unlawful for an employer to discriminate against an employee on the ground 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".

Section 8

"A reference in subsection 5 (1), 6 (1) or 7 (1) or section 7A 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."

3. THE EVIDENCE

There is no suggestion that the complainant was not a qualified and competent security patrol officer. She had obtained her security licence in November 1991, having completed two courses successfully. Her normal week's work for the partnership consisted of a set run from Chatswood to Mascot and out west to West Ryde and east to Bondi, with two night shifts and two day shifts. As part of her run, the complainant locked up premises and answered alarm responses. The complainant experienced no problems and received no adverse comments as to her performance for the first six months of her employment with the partnership.

After the first six months, however, the complainant began to receive some indications of discontent attributed to Mr Blackwood by Mr Curley. On one occasion she and Mr Curley were travelling together in the car when Mr Curley received a telephone call from a person she believed to be Mr Blackwood. Mr Curley conveyed to her that Mr Blackwood was generally unhappy with her wearing the Intellisec uniform because she did not fit the Intellisec image. The reason given was that she was a small female and reference was made to the complainant having "bits missing" and "no nuts".

The complainant said that she had never spoken to Mr Blackwood until after her employment was terminated. The complainant telephoned him in respect of her termination and said he then told her that she had to give "150%" because of her "style". By "style" the complainant believed that Mr Blackwood was referring to her gender. She said also that Mr Curley told her that Mr Blackwood had instructed him to terminate her employment.

Mr Warren gave evidence that he was never unhappy with the complainant's performance of her duties. Mr Warren said that Mr Blackwood started complaining about the complainant about six weeks before her termination. Mr Warren said that Mr Blackwood said that the complainant did not fit the Intellisec image and was "small".

Mr Curley confirmed that there was one occasion when Mr Blackwood spoke to him while he was in the car and made the comment about the complainant having "no nuts". He attributed this to a general difficulty Mr Blackwood had with women as security patrol officers. Mr Curley also said the Mr Blackwood had said that he needed "big blokes, six feet high" working for him.

Mr Curley also described the increasing dissatisfaction of Mr Blackwood with the work being done by Mr Warren. He said that although Mr Blackwood complained generally about the complainant being a woman he never really made an issue of it. Mr Curley also said that Mr Blackwood never suggested that the complainant should be dismissed until the cancellation of Mr Warren's licences. Then he told Mr Curley that because of her relationship with Mr Warren she was a security risk and had to go. The complainant, to Mr Blackwood's knowledge, was living with Mr Warren at the time. Mr Curley said he terminated the complainant's employment because he was dependent on Mr Blackwood for his income and had no option but to do as he was told.

At the conclusion of Mr Curley's evidence, Counsel for the complainant applied for an order pursuant to s.62 of the Act that Mr Blackwood be joined as a respondent. I declined to rule on the application at that stage and the hearing was adjourned until 5 September 1994 to enable Mr Blackwood to give evidence.

Mr Blackwood denied that he had ever made the statements attributed to him by Mr Warren and Mr Curley that were critical in general of women as security patrol officers and the complainant in particular. He said he was not opposed to women as security officers and had never had a client tell him they did not want a female security officer patrolling their premises. Mr Blackwood said the only way in which he was concerned about the Intellisec image in respect of any employee was that the employee be well presented and neat in appearance.

Mr Blackwood said that he became aware of hostility developing between Mr Warren and Mr Curley from about May or June 1992. He said his own problems with Mr Warren developed about the same time. From then on he received numerous complaints from clients - relating to Mr Warren, not the complainant - and Mr Warren became more and more aggressive with him. This led eventually to the cancellation of his licences on 21 September 1992.

Mr Blackwood also denied that he had ever told Mr Curley to terminate the complainant's services. He said he always knew that you should never sack a woman because of her sex and he also considered it would be unethical to do so. He said he had met with Mr Curley and Mr Curtis shortly before severing his relationship with Mr Warren to discuss the coming severance and that Mr Curley had then told him he was going to terminate the complainant's employment. Mr Blackwood said that the complainant's employment had never been an issue for him. The notion of a security risk did not start with him; it started with Mr Curley and arose out of the latter's anxiety over the animosity that had infected his relationship with Mr Warren.

Mr Blackwood also testified that the complainant had telephoned him after her dismissal to discuss the reasons for it but he had not entered into a discussion about it. He said he told the complainant it was a matter for Curley and Warren. He denied having said he did not like her style.

Following a further adjournment on 5 September 1994, Mr Paul Curtis was located and requested to attend the adjourned hearing on 6 December 1994. There was no application to rejoin him as a party. He gave evidence as a witness.

Mr Curtis told how he had worked as a sub-contractor for Mr Blackwood from 1990 to 1993. He said he saw a lot of him and spoke to him regularly. He said Mr Blackwood often "whinged" about Warren and Curley and "had a beef" about women security patrol officers. He told Mr Curtis that the complainant did not fit the Intellisec image.

Mr Curtis told how Mr Blackwood had stated that he was concerned that clients would, in reference to the complainant, comment on the "big chested security girl" or say that she was a "dwarf". Interestingly, Mr Curtis said about a month after the complainant had commenced employment with the partnership, Mr Blackwood had stated that he needed people "with nuts" working for him and that the complainant would not be able to handle herself if anything happened whilst she was on patrol.

Mr Curtis' testimony concluded the evidence. Counsel for the complainant then addressed me on the question of the joinder of Mr Blackwood as a respondent. I was not of the opinion that he ought to be joined as a party (see s.62 of the Act) and declined to grant the application, whereupon Counsel made their final addresses.

4. FINDINGS

I have reached the clear conclusion in this case that neither Mr Curley nor Mr Blackwood wanted the complainant to be dismissed because she was a woman. I was impressed with Mr Blackwood as a witness and accept his evidence in its entirety. It follows that I find he did not make the derogatory comments about the complainant that were attributed to him, nor did he instruct Mr Curley to terminate her employment on the ground of her gender or for any other reason. I pause to observe that even if I had concluded that Mr Blackwood held the view that the complainant "did not fit the image of Intellisec", that finding of itself would not lead to a conclusion that the complaint was substantiated unless it was accompanied or followed by efforts to end her employment. It is common ground that Mr Blackwood had the de facto power to influence his sub-contractors, through financial pressure, to end her employment at any time. Yet that employment continued without interruption for ten months.

I find that the complainant was a casualty to her relationship with Mr Warren. When he lost his licenses with Justov and fell out of the partnership, the complainant had to go too if the new partnership of Mr Curley and Mr Curtis was not to face a security risk. Given the hostility that had soured Mr Warren's relationship with both Mr Curley and Mr Blackwood, Mr Curley was right to be concerned about this security risk. His concern was shared by Mr Blackwood when Mr Curley informed him of the animosity that had developed between Mr Warren and himself.

Counsel for the complainant argued that the security risk issue could be overstated and suggested it would be a routine risk every time an employee was dismissed. But the risk in this case lay in the continued employment, not the dismissal, of the complainant.

I have given consideration to the question whether there is any room, on the view I take of the evidence, for the complainant's gender to have been one of two reasons for the dismissal, albeit not the dominant or substantial reason (see s.8 of the Act). The answer I give to that question is in the negative. I have already absolved Mr Blackwood of any responsibility for the dismissal and there is absolutely no evidence that Mr Curley was motivated to any degree at all by gender bias.

5. CONCLUSION

In light of the findings I have outlined, I conclude that the complaint has not been substantiated. It must therefore be dismissed.

DATED at Sydney this 12th day of January 1995

Ronald Wilson

President