Di Petta v Edgells-Birdseye [1996] HREOCA 3 (19 March 1996)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No: H95/84

Between :

Antonia Di Petta

Complainant

And

Edgells-Birdseye

Respondent

REASONS FOR DECISION

OF

COMMISSIONER ROBERT NETTLEFOLD

Date of Decision: 19 March 1996

Hearing: Melbourne

Date: 10 October 1995

Appearances: Complainant: In person

Respondent: Mr A.R. McNab of Counsel, instructed by Sharwood Eyers Wilkie

On 2 November 1994 a complaint was received by the Victorian Equal Opportunity Commission from the complainant. The complainant alleged that she had been an officer and shareholder in a company called Di Petta Bros Transport Pty Ltd ("Di Petta Bros"). That company had carried on a transport haulage business for many years. At one stage in the history of that company the shareholders were the complainant's late husband, the complainant, Nardo Di Petta, her brother-in-law and his wife, her sister. The complainant's late husband died 6 or 7 years ago. The business was continued the shareholders being the complainant, Nardo and Nardo's wife.

In 1991 Di Petta Bros won a contract to cart primary produce for the respondent. It appears to have been a substantial and profitable contract. Unfortunately, it appears that unhappy differences developed in the family. A decision was reached that Di Petta Bros would cease to carry on business and the assets of that company would be divided between the shareholders. Apparently that division was made. Di Petta Bros remains on the records but it has ceased to carry on business.

In about September 1994 the former shareholder in Di Petta Bros, Nardo Di Petta, and a son of the complainant's, James Di Petta, a qualified mechanic, formed a partnership to continue in the transport business. The complainant joined with her son Steve Di Petta, an accountant, to form a company also with the purpose of carrying on a transport business. That company is called Di Petta's Transport No. 1 Pty Ltd ("Di Petta's Transport").

Di Petta's Transport and Nardo and James' firm each sought to get the contract to cart the respondent's primary produce. By letter dated 20 September 1994 the respondent advised the complainant that her application had been unsuccessful. The firm had succeeded in getting the contract because their "greater hands on experience" was "the deciding factor". It is alleged that Steve Di Petta was told by an officer of the respondent that his mother would not be able to do any mechanical repairs to the trucks, it was a mainly male dominated industry, there were not too many female transport operators. It was pointed out to the respondent's officer by Steve that he would be there to assist her and she had been in the industry for over 35 years. The respondent' officer asked "how would she cope in that industry".

As a result of the respondent's decision to award the contract to Nardo and James's firm it is contended that the complainant has suffered substantial financial loss and her health has suffered due to worry and anxiety.

The complainant contends that, in awarding the contract to the opposition firm, a male owned and operated business, and rejecting the application by her company, the respondent was guilty of unlawful discrimination against her.

Her complaint was initially rejected by the delegate of the Sex Discrimination Commissioner, pursuant to s.52(1)(a) of the Act, on the basis that it did not disclose any unlawful discrimination. Awarding the contract to the competitor firm rather than the complainant's company did not give rise to any ground of discrimination under the Act. The complainant exercised her right under s.52(4)(a) to require the Commissioner to refer the complaint to the Commission for an inquiry.

This application under s.79 of the Act is based, in substance, on the proposition that the decision to decline the complaint was correct.

The application to dismiss the complaint under s.79 should be dismissed. On the material outlined above, it would be open to the Commission to find at the hearing that the decision to award the contract to a male owned and operated business and to reject the application of the complainant's organisation supported, as it was, by comments arguably wrong in fact and sexist, fall within the definition of "discrimination" in s.5(1) of the Act. The definition would be applied simply on the basis that the aggrieved person was the complainant and not her company. On that basis, the fact that the company does not have a gender is a relevant fact, no doubt, but it is not necessarily a decisive fact. It might be seen as a conduit through which the respondent's discriminatory act flowed to and adversely affected the complainant.

There is a reasonable argument open that the discrimination, if such were the character of the conduct, was unlawful discrimination under s.14(1)(b) of the Act. The work "under a contract for services" with the respondent could be found to fall within the definition of the term "employment" in s.4 and, hence, in s.14(1)(b). On that basis, the term "employment" could be construed as including a contractor under contract for services. On that basis the respondent's alleged discrimination in this case would be caught by the sub-section. No doubt that approach will be supported in argument at the hearing by reference to the undoubted fact that the Act being remedial in character should be "liberally construed".

The complainant seeks to support her case, in addition, by a reliance on s.16. That section, when applied, to this case, gives rise to a difficult question of construction which should be left to be decided at the hearing.

There is a good deal to be said for the view that, in a case like this one, a narrow construction of ss.14 and 16 would be contrary to the intention of Parliament. Whether that principle will take the complainant far enough is an interesting and important question which should provoke a good deal of argument at the hearing. But, bearing in mind that principle, and the other matters mentioned above, the application should fail.

DATED this 19 day of March 1996

Robert Nettlefold

Inquiry Commissioner