D'Souza v Geyer and Directorate of School Education Victoria [1996] HREOCA 4 (25 March 1996)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975 (Cth)

No. H94/100

Between:

Maria D'Souza

Complainant

and

Peter Geyer

First Respondent

and

Directorate of School Education Victoria

Second Respondent

REASONS FOR DECISION

OF THE INQUIRY COMMISSIONER STEPHEN KEIM

Date of Decision: 25 March 1996

Hearing: Melbourne

Dates: 2, 3, 6, 7 and 8 March 1995

3, 4, and 5 April 1995

29 June 1995

Appearances: The complainant in person.

Mr Peter Hanks instructed by the Victorian Government Solicitor for the respondents.

Maria Blasia D'Souza (Mrs D'Souza) lodged a complaint with the Human Rights & Equal Opportunity Commission ("the Commission") pursuant to the Racial Discrimination Act 1975 (Cth) ("the Act") on 5th January, 1993. On 30 November 1994, after unsuccessful attempts to conciliate a settlement, the Race Discrimination Commissioner referred the matter to the Commission for public inquiry pursuant to section 24E of the Act.

Mrs D'Souza was a teacher at the Dingley Primary School during the period covered by the complaint. The complaint concerns the actions of Peter Geyer ("Mr Geyer"), the Principal of Dingley Primary School during the relevant time. The Directorate of School Education, the employer of both Mr Geyer and Mrs D'Souza, is also a respondent to the complaint. The allegations against the Directorate relate solely to its vicarious liability for the actions of Mr Geyer during the relevant period.

Mrs D'Souza was born in the Portuguese territory of Goa which is located on the west coast of India south of Bombay. She spent her early years in Goa and did her studies to qualify her as a teacher at a centre in Poona which is in the Republic of India not all that far from Goa. Mrs D'Souza taught for twenty three years in India prior to migrating to Australia. For a period of time, she was the headmistress of the Primary School and Deputy Headmistress of the High School in a combined Primary and Secondary School. Most of her experience in India was in the Catholic School system. However, she taught for a number of years at the Airport High School, a form of international school run by the authority that also ran the airport.

Mrs D'Souza appears to have come to Australia in about 1980. Her qualifications were not recognised by the State Education system in Victoria. However, she was able to get work in the Catholic system in Australia and worked first at St Augustine's school at Yarraville and then at the school of Our Lady of Perpetual Succour in Surrey Hills for a total of four years. She then did twelve months study at the Burwood State College. Since she had been given two years credit for her Indian qualifications, this qualified her to work in the State School system.

Her first posting in March, 1985, was to the Midway Language Centre at Maribyrnong where she worked with children who were recent arrivals to Australia, many of whom had only limited knowledge of English. She was subsequently transferred to Malvern Primary School in late May of 1986. This was where she was working prior to her transfer to Dingley Primary School in the fourth term of 1988.

Mrs D'Souza is recognisably "non-Caucasian" in appearance. Her accent is recognisable as coming from the Indian sub continent.

Mr Geyer has been employed by the Education Department for over thirty six years. He has been a Principal for some nineteen years. He had been a Principal at two schools prior to commencing as Principal of Dingley. He commenced as Principal at that school at the beginning of 1986.

1. THE ALLEGATIONS

Mrs D'Souza's complaints relate to a number of incidents which occurred during the period from when she first attended Dingley Primary School for the purpose of an interview with Mr Geyer and his Deputy Principal of the time, Ms Joan Creighton ("Ms Creighton") some time prior to 8th September, 1988 until she left the school at the end of 1992 having been declared one of three teachers in excess of requirements which caused her to be placed in a bank of teachers many members of which were not allocated to schools and were available for relieving work.

Mrs D'Souza went through her list of complaints in her evidence-in-chief and it is convenient to set out the various matters of which she complained.

First, Mrs D'Souza complained of the interview that she had with Mr Geyer prior to taking up her duties at Dingley School. It is clear from the contents of exhibit 59, a letter that Mr Geyer wrote on 8th September, 1988, that the visit took place prior to the writing of that letter.

Mrs D'Souza complains that, although she had been informed that she would be taking over a Grade One class, Mr Geyer offered her a composite Grade Two and Three class. She complains that Mr Geyer, untruthfully, told her that the previous teacher had left the grade on the grounds of stress and nervous breakdown and might not be coming back to teach. Mrs D'Souza's case is that these statements were made to her in order to discourage her from coming to Dingley School. Her case is that Mr Geyer was prejudiced against her because of her Indian extraction and that this was the first incident in which Mr Geyer treated her less favourably on account of her race.

Mrs D'Souza started teaching at Dingley Primary School in Grade One at the beginning of the fourth term of 1988. Mrs D'Souza's second complaint relates to a conversation within a month of her starting at school. She states that Mr Geyer told her that he had received complaints from parents against her. Mrs D'Souza alleges that these complaints were in some way invited or orchestrated by Mr Geyer.

The third aspect about which Mrs D'Souza complains involves a failure to allocate her to classroom teaching at the beginning of the 1989 year. It was alleged that Mrs D'Souza had nothing to do for a period of time until Ms Creighton allocated her to do certain duties concerning the school's computers and she was subsequently also allocated to work with integration children.

The fourth item of complaint relates to discipline procedures that took place in early 1990. Exhibit 2 indicates that the procedure formally commenced on 13th March, 1990. This is generally in accord with Mrs D'Souza's evidence. In 1990, Mrs D'Souza was reallocated back to classroom teaching and was teaching a Grade One class. Formal disciplinary procedures were brought by Mr Geyer alleging incompetence on the part of Mrs D'Souza. As part of this process, Mrs D'Souza was provided with the assistance of a support group which appears, from the evidence, to be a procedure which was intended to provide non confrontationalist support, assistance, and supervision for a teacher who needs that support. One can understand, however, that teachers would not be anxious to be given a support group because of the stigma of inadequacy associated with such a process. Mrs D'Souza's complaint is that the whole process of the disciplinary proceedings including forcing her to take a support group was motivated by a continuing prejudice held by Mr Geyer against her on the basis of her racial background.

Fifth, Mrs D'Souza complains that Mr Geyer, when he received the report of the support group which she perceived as being a favourable assessment of her teaching capabilities, refused to accept the group's report and insisted on a continuation of the disciplinary procedures including the lodging of the formal complaint with the Industrial Relations Section of the Directorate. This formal complaint is exhibit 2, referred to earlier. It is dated 15th May, 1990. Again, Mrs D'Souza's case is that the continuation of the proceedings and the rejection of the findings of the support group were motivated by racial prejudice and amounted to treating her less favourably on account of her race.

The sixth complaint is that Mr Geyer would harass Mrs D'Souza by following her during the conduct of her duties and rebuking her in an unprofessional manner in front of her students. These incidents are said to have taken place in the classroom; in the playground; and on one occasion during a cricket game supervised by Mrs D'Souza. Another of these incidents involved Mr Geyer's rebuking Mrs D'Souza in the classroom in front of her class for allowing the carpet in the classroom to get dirty through failure to supervise her children. Mrs D'Souza claimed there were four or five of these incidents of speaking to her inappropriately in front of her children.

The seventh aspect of the complaint relates to events which, according to exhibit 5, took place on or about 11th June, 1991. The issue involves an application by Mrs D'Souza to be classified as an advanced skills teacher level 1 (AST 1). This system of classification was independent of the normal chain of promotion and was a system which was intended to encourage professionalism among teachers. That is, one could receive an AST 1 classification and receive certain extra remuneration and entitlements without having to apply for a vacancy to which the normal promotions system related. Mrs D'Souza's allegation is that Mr Geyer manipulated the panel consisting of himself and three other persons to produce an unfavourable result in that Mrs D'Souza was not granted her AST 1 classification. Mrs D'Souza alleges certain technical flaws with the AST 1 process in support of her claim that Mr Geyer manipulated the process.

The eighth matter in Mrs D'Souza's set of claims relates to a set of parent teacher interviews that were to and did take place in June, 1992. Mrs D'Souza had some problems with driving because of certain problems with her eyes. Mrs D'Souza's allegation is that, despite the fact that other teachers raised with Mr Geyer at a staff meeting that Mrs D'Souza would have problems holding parent teacher interviews as late as 9.00 p.m., Mr Geyer insisted on making that the applicable time period. Mrs D'Souza claims that a notification about the holding of the meetings went out in a general instruction bulletin distributed to staff. On receiving this document, she claims she raised with Mr Geyer her inability to stay beyond 6.30 p.m. and that she intended to tell parents that the interviews could be arranged up until 6.30 p.m. Her evidence was that Mr Geyer said on this occasion that she could do what she liked. However, her evidence was that, some days later and before the evening of the interview, Mr Geyer barged into her classroom insulting her with accusations that she was extremely unprofessional, unco-operative and lacking in team spirit. He was then sarcastic to her about her offer to produce her medical certificate and made references to a forthcoming 1992 round of AST 1 applications.

The ninth complaint relates to the 1992 AST 1 assessment process. Again, Mrs D'Souza was an applicant. Exhibit seven, which is dated 8th September, 1992, is the report relating to her application and, accordingly, the assessment process occurred at about that time. Again, Mrs D'Souza claims that Mr Geyer manipulated the members of the panel (a different panel to that of the earlier year) to have her application refused. Again, she raises a number of technical matters associated with the formation of the panel in support of her claim.

The tenth complaint relates to further disciplinary processes commenced by Mr Geyer towards the end of 1992. (Mrs D'Souza had made a formal complaint, herself, against Mr Geyer on 22nd September, 1992 to the Personnel Industrial Relations and Operations Branch ("the Personnel Branch")). As well as being based on his continuing prejudice against her, the formal disciplinary processes commenced by Mr Geyer are also alleged by Mrs D'Souza as being in retribution for the processes that she commenced. The timing of the processes commenced by Mr Geyer can be dated by exhibit 23 which is a letter from him to Mrs D'Souza dated 23rd October, 1992. Such a letter is one of the initial steps in the process. The official notification of the Personnel Branch was by way of letter dated 12th November, 1992, exhibit 25. Exhibit 25 had attached to it a series of letters from other staff members addressing various issues raised in the complaints. It was part of Mrs D'Souza's case that the authors of those various letters which are exhibit 26 and following were in some way manipulated by Mr Geyer as part of his campaign against Mrs D'Souza.

The eleventh matter of complaint related to processes that took place in November and December, 1992. As a result of changes in policy, the schools in Victoria were required to identify certain numbers of teachers who were to be taken from the school and placed into a pool of excess teachers. The criterion on which such an assessment was made was that the required number of teachers in each case were to be identified as being the least effective teachers at the school. Mrs D'Souza was nominated as part of this process as one of three teachers from Dingley Primary School to be placed in the pool of excess teachers. She complained that this process was not genuine in her case and that she was chosen to be placed in excess by Mr Geyer because he was prejudiced against her on the grounds of her race.

The twelfth aspect of the claim is really a result of that just discussed. Mrs D'Souza referred to the fact that she had originally gone to Dingley Primary School on compassionate grounds so that she would not be too far away from her home and would not have to drive long distances in darkness at the end of a days' teaching. As a result of being placed in the pool of excess teachers, she had to do relieving duties which caused her to have to drive up to one and a half hours to her appointed school. This took place in early 1993.

The thirteenth aspect of her claim relates to events that took place back in September, 1992. Mrs D'Souza was allocated to Dingley Primary School on a temporary basis. This meant that she had to reapply each year to be reallocated to that school. A form was filled out and dated 7th September, 1992 by Mrs D'Souza in which she placed her preferences for allocation for the following year. This document is exhibit 32. Mrs D'Souza filled in the transfer application form. Mr Geyer on the same day placed comments on the form stating that it would be in Mrs D'Souza's best interests and in the best interests of Dingley Primary School if she was relocated at another school in 1993. Mrs D'Souza claims that these comments were also made as a result of Mr Geyer's prejudice against her and constituted an attempt by him to get rid of her from Dingley Primary School - another example of treating her less favourably on the grounds of her race.

The fourteenth element of the complaint was to some extent solicited by me as a result of perusing documents that had been tendered on other matters. The issue relates to a child called "Fiona". Fiona's father had, according to Mrs D'Souza, made a written complaint to Mr Geyer stating that, upon the mention of Mrs D'Souza's name at home, the child exhibited an eye twitch. However, Mrs D'Souza said that this letter of complaint was inconsistent with subsequent statements from Fiona's mother who told Mrs D'Souza that both her and the child's brother had been identified as having eye defects. The mother asked for a red spot to be placed on the board in the classroom (presumably to assist the child to focus her vision). The mother also asked that the child be placed in the front of the classroom. Mrs D'Souza subsequently asked the father for a medical certificate relating to the eye condition that had been diagnosed but, after a number of requests, the father told Mrs D'Souza that Mr Geyer had told the father not to give her the medical certificate. The inference that Mrs D'Souza sought to be drawn from the evidence is that the complaint by the child's father in the first place was instigated by Mr Geyer as part of his campaign against Mrs D'Souza.

This list of complaints is taken largely from Mrs D'Souza's evidence-in-chief. There is a degree of artificiality about breaking the complaints concerning the whole history of Mr Geyer's actions during Mrs D'Souza's time at the school into fourteen discrete incidents. The numbering that I have come to is broken down into a greater number of incidents than was the case with the history of the period and the analysis which Mrs D'Souza used for the purpose of giving her evidence-in-chief. In fact, some incidents not among those listed above including a number of interviews as part of and leading up to the disciplinary processes assumed significance and took up considerable amounts of hearing time. On Mrs D'Souza's case, whether the incidents are broken up into fourteen or more or less, there was a continuing pattern of events in which Mr Geyer treated her less favourably on account of her racial origins.

2. THE FIRST INTERVIEW AT THE SCHOOL

D'Souza

This incident took place shortly prior to 8th September, 1988.

Mrs D'Souza's evidence of the incident was quite brief. She said that she was appointed to Dingley Primary School on compassionate grounds (because of her vision). She went there because her former Principal, Mr Kevin Ryan ("Mr Ryan"), the Principal of Malvern Primary School sent her there. He told her to go to meet her new Principal. When she went to Dingley, she was treated with disdain and contempt. She was asked whether the Directorate of School Education had given her only the one school and Mr Geyer told her that she should have been given at least three choices. She told Mr Geyer that she had been directed to his school because this was the only school available.

According to Mrs D'Souza, Mr Geyer said that he anticipated that she might not be acceptable to the school community because she was different and because her language would be a barrier.

Mrs D'Souza said that Mr Geyer also told her that he could not offer her Grade One. This was contrary to what the Directorate of School Education had informed Mrs D'Souza. According to her, the Directorate had informed her that she had to take over Grade One. However, on the occasion of the meeting, Mr Geyer offered her a composite Grade Two and Three. He also told Mrs D'Souza that the previous teacher, a Mr Jenkins, had left the Grade on the grounds of stress and nervous breakdown and might not be coming back.

She was later advised (probably by Ms Creighton) that this statement was untrue.

Mrs D'Souza said that the interview took place in Ms Creighton's office. She said that Ms Creighton was present. She said that, when she joined the school, it was Grade One which she was given.

Creighton

Joan Carmel Creighton ("Ms Creighton") is now a retired teacher. She retired during 1991. She had been teaching at Dingley Primary School from either 1980 or 1981. In this respect, she predated Mr Geyer who was appointed Principal in about 1986.

Ms Creighton gave evidence that Mr Geyer had had a conversation with her prior to Mrs D'Souza attending the school. Mr Geyer had told Ms Creighton that Mrs D'Souza had previously been on a disciplinary and dismissal charge and that she had no classroom experience at her previous school. Mr Geyer was also unhappy because Mrs D'Souza had an accent among other things. He had rung the staffing section of the Directorate to see if Mrs D'Souza could be given to another school and Dingley could receive a different teacher in her place.

According to Ms Creighton, her response to Mr Geyer's expressed concerns was that Mr Geyer should not prejudge the teacher and that Mrs D'Souza may turn out to be quite a good teacher. Mr Geyer, according to Ms Creighton, was not amenable to such suggestions and said that he did not want Mrs D'Souza at his school.

(Note that on page 71, lines 13 to 15 there is an error in the transcript. Mr Geyer is quoted as saying "I don't want to hear this girl". My notes and my general recollection are to the effect that Ms Creighton said, quoting Mr Geyer, "I don't want her at this school").

Ms Creighton said that Mr Geyer discussed with her prior to the attendance of Mrs D'Souza the plan by which the new teacher would, at the interview, be told that she was to have a Grade Two/Three composite class and would be shown the class in question. Because of the nature of that class and the fact that it was currently in the hands of a relieving teacher, it would appear to be an unruly class so that the process would discourage the new teacher from wanting to come to the school. Ms Creighton said that she advised Mr Geyer against such a process but he determined to go ahead and did so.

Ms Creighton was present at the interview with Mrs D'Souza. She recalls Mr Geyer telling Mrs D'Souza about the composite Two/Three class and that the teacher who had previously taught that class was absent, ill, with a nervous breakdown because the Grade had been so difficult and that Mrs D'Souza was going to be asked to take that Grade. Ms Creighton said that she knew this statement was wrong because she knew that the teacher in question was actually on long service leave. Ms Creighton said that she felt that she could not, in the presence of the new teacher, contradict her Principal.

Ms Creighton said that Mr Geyer at the interview did say to Mrs D'Souza that she should have been given a choice of two or three schools not just one.

I understand her evidence to be that Mrs D'Souza was taken down and shown the difficult Grade Two/Three class.

The only aspect of the matters raised in Ms Creighton's evidence that may be seen expressly to relate to Mrs D'Souza's ethnic background is the reference to her accent. One of the ways in which Mr Geyer was said by Ms Creighton to have raised this aspect of the matter was when he said, "Look, the parents won't accept it and the children won't be able to understand her".

One can understand a Principal who is keen to protect the standards in his own school to be resistant to receiving a teacher who was both apparently inexperienced in classroom teaching and had some form of disciplinary charge in the past. While the subterfuge of telling lies about the class in order to discourage a teacher from wanting to come to the school can be properly the subject of disapproval, on its own, it does not raise any issue of discrimination on racial grounds.

On the other hand, if Mr Geyer's actions were motivated by race, he might well have seized on non-racially specific matters such as inexperience when rejecting and, thereby, treating less favourably a prospective teacher.

A person's accent or ability to be understood may be seen to be an incident of the culture in which a person has been raised. Questions of fact and law arise as to whether a particular objection to the manner in which a person speaks is an objection properly related to the needs of the job or mere prejudice against an important aspect of a person's total makeup which aspect is a necessary incident of that person's history and background including ethnic origin.

Before these issues can be considered in more detail, I need to address Mr Geyer's version of the events in early September, 1988.

Geyer

Mr Geyer said that, at the interview, he spoke with Mrs D'Souza about informal non school related matters such as what school she had previously been at and where she lived. He talked to her at length about curriculum matters in order to ascertain her knowledge of curriculum and how it applied to Dingley. He asked her about what sort of things she had done recently in her teaching career. He talked to her about possible locations within Dingley.

Mr Geyer said that Mrs D'Souza told him that she had been appointed to Dingley to take Grade One. He said that he had told her that that was not necessarily the case but one of the number of options that he would have to consider, one of which was the possibility of her being placed in another Grade within the school. He said that he mentioned the possibility of a composite Grade Two/Three. He said that this was more a consideration than an option at that stage. He said that the regular teacher, Ron Jenkins, was on long service leave and that an extended emergency teacher had taken the Grade for a period of time.

Mr Geyer denied that he had told Mrs D'Souza that she would be assigned to the composite class and also denied that he had told her that it was a difficult Grade and that its current teacher was on stress leave because of a nervous breakdown.

Mr Geyer also denied that he had discussed with Ms Creighton before the interview a proposal where he would say to Mrs D'Souza that he was going to give her the composite Grade in order to make her not come to the school. He was unable to say whether or not he had taken Mrs D'Souza to see the composite class. However, he said that he usually took visitors on a tour of the school and could not recall if the composite class was included in such a tour on this occasion. In fact, he was not sure if he took Mrs D'Souza on a tour of the school.

It seems to be the effect of Mr Geyer's evidence that, at the time of the interview with Mrs D'Souza, he had made no decision as to what class or other duties within the school he would allocate her.

It is part of my duty in deciding this case to form some view as to what happened at the interview. It also falls within that task to determine what Mr Geyer's motivations were concerning his own role in the interview. These two matters are inter-related. Some light can be cast on both of them through knowing what information Mr Geyer had received prior to the interview. Some information concerning this is contained in Ms Creighton's evidence as to what Mr Geyer told her prior to the interview. Mr Geyer also gave evidence about the information he had received concerning Mrs D'Souza.

Mr Geyer said that, towards the end of term three, he received a telephone call from staff at the Primary Staffing Section of the Directorate. He was told by that officer that a teacher would be placed in his school the following term and that that teacher's name was Maria D'Souza. He may have been told some information about where she was currently teaching. In any event, he had a telephone conversation with Mr Kevin Ryan, the Headmaster of Malvern Primary School. Mr Geyer said it was his standard procedure and a procedure generally followed by Principals to obtain background about teachers allocated to their schools, apparently, for the purpose of making decisions about how best to use those teachers.

Mr Ryan told Mr Geyer that Mrs D'Souza had been placed in his school over entitlement. That is, she was a teacher placed in Mr Ryan's school in addition to the number of teachers the school would normally be entitled to on the basis of its enrolment, special needs, etc. Mr Ryan also told Mr Geyer that Mrs D'Souza had been placed at his school as a consequence of a complaints procedure that had taken place at her previous school. Mr Ryan expressed to Mr Geyer a concern that Mrs D'Souza may not be able satisfactorily to handle the job as a generalist classroom teacher and he told Mr Geyer that he had been reluctant to place Mrs D'Souza in control of a large group of children and that he had kept her mainly to small group work.

Exhibit 59, a letter written by Mr Geyer dated 8th September, 1988 included the statement that the vacant position at Dingley Primary School was for a full-time classroom teacher in charge of a large Grade and expressed Mr Geyer's concern that Mrs D'Souza was likely to experience difficulties. Mr Geyer said that parents were heavily involved in school programs and had very high expectations. He said that he believed that Mrs D'Souza would have problems communicating with those parents.

Exhibit 59 was written after both the interview with Mrs D'Souza and the prior conversation with Mr Ryan. Ms Creighton's evidence suggested that Mr Geyer had said that there would be problems with Mrs D'Souza's ability to communicate prior to Mr Geyer's having spoken to Mrs D'Souza. Mr Geyer's version of his conversation with Mr Ryan does not specifically make any reference to Mrs D'Souza's ability to communicate. Mr Geyer had an opportunity to assess Mrs D'Souza's communication skills in his conversation with her. He gave evidence that he formed a negative view of her abilities during that conversation. He recounted that he suggested to Mrs D'Souza that she might have some difficulty communicating with the children and with the parents. When asked why he made that suggestion, he described the nature of the difficulty as being perhaps a two way process. He said that he could not understand Mrs D'Souza's actual speech clearly in that she spoke fairly quickly, did not enunciate clearly and that some of her grammatical construction was a little unusual. He said that she seemed to have difficulty comprehending what he was saying and that he too had difficulty in comprehending the actual content of the material she was presenting to him. In terms of her difficulty in comprehension, he felt that, although Mrs D'Souza could understand the words he was using, she appeared not to understand the concepts. This also seemed to be something of a two way process.

If Mr Geyer formed the impression that Mrs D'Souza would have communication problems during the interview with her, this may have been a genuine conclusion to which he had arrived through speaking to her. However, Ms Creighton's evidence is that he expressed concerns about Mrs D'Souza's ability to communicate with parents and children prior to the interview. If Ms Creighton is correct in that part of her evidence, the question arises about the basis for Mr Geyer's concerns about the issue of Mrs D'Souza's ability to communicate. There does not seem to be anything in Mr Geyer's recounting of his conversation with Mr Ryan that points specifically to concerns about her ability to communicate. The question therefore does arise whether the concern with communication arose independently of anything that Mr Geyer was told about Mrs D'Souza and may therefore have been the subject of some prejudice.

To throw some light on this situation, I propose to turn to the evidence of Mr Ryan particularly as it relates to the conversation he had with Mr Geyer. However, to place that conversation in context, one can gain assistance from evidence about Mrs D'Souza's earlier experiences with the Department.

Walker

Robert Roy Walker ("Mr Walker") has been retired since May, 1994. He had been employed as a teacher by the Directorate of Education since 1965. Apart from periods when he was on working leave and a short period when the job was being re-advertised, Mr Walker was the teacher in charge of the Midway Language Centre at Maribyrnong until his retirement.

Mr Walker impressed me as a kindly and fair person and a conscientious teacher. I was also impressed by his manner of giving evidence and felt that he was anxious not to overstate his recollection nor to say any more that was adverse to Mrs D'Souza than was absolutely justified by his observations and experiences.

Mr Walker gave a reference to Mrs D'Souza which is exhibit 58. The evidence suggests that it was given about midway through 1985. Mr Walker stated that his giving of the reference was not inconsistent with the criticisms he had made of Mrs D'Souza's conduct elsewhere in evidence and in his official actions. He described the reference as being true but a minimalist statement. On reading the document, I tend to agree with that description and do not find that the reference indicates anything other than that Mr Walker, on being asked to give a reference, was attempting to be both tactful and truthful. I do not find exhibit 58 to reflect adversely on his credibility.

(The nature of this complaint and the fact that it covered a number of different incidents spanning a number of years meant that I heard evidence from a very large number of teachers and other persons connected with the education system. As a group and as individuals, these witnesses gave me a very favourable impression as to the level of dedication held by teachers in the Victorian State system. While, as part of my decision, I have to make some difficult choices among the recollections of a small number of the witnesses including the complainant and the individual respondent, I have generally had no qualms about accepting the evidence of those witnesses who came before me as honest and impartial recollections of the events at which they had been present. This has been of great assistance to me in my difficult task).

Mr Walker described the Language Centre as quite a special place providing skills to young people who were newcomers to Australia many of whom had undergone significant trauma in their countries of origin. As a result, the staff at the Centre came from disparate backgrounds; needed to work together very strongly as a team; and needed to provide a very special kind of schooling for their students.

Mr Walker thought that this was not a particularly easy environment for Mrs D'Souza to fit into.

Mr Walker received complaints about inappropriate discipline being applied by Mrs D'Souza. This resulted in exhibit 53, a letter dated 30th September, 1985 from Mr Walker to Mrs D'Souza which conveyed a report received by Mr Walker that Mrs D'Souza had breached a regulation concerning physical punishment of children. That letter was not specific concerning the complainant or the incident. Mrs D'Souza replied very strenuously by way of exhibit 54, a letter dated 1st October, 1985, to Mr Walker alleging, inter alia, envy, spite, racial discrimination or mental imbalance concerning the colleague who had dared make the report.

Mr Walker had conversations with Mrs D'Souza on both the 3rd and 4th October, 1985. Exhibits 55 and 56 are Mr Walker's notes of these conversations. Mrs D'Souza was at first willing but, subsequently, unwilling to accept an informal support arrangement and this resulted in a formal disciplinary process initiated by letter dated 6th December, 1985 from Mr Walker to Mrs D'Souza setting out various allegations: exhibit 35. Mr Walker's own impressions at the time were that Mrs D'Souza may well have acted roughly with a child without being particularly aware of what she was doing. He based this on observations where he had seen Mrs D'Souza working with a group of small children in a way which made the children cowed, wary or anxious. He said her voice and body language were very brusque and she did not appear to relate individually to children.

The official complaint resulted in a report of an enquiry panel consisting of a Departmental Officer and a representative of the Union. Neither of the authors of that report gave evidence. Accordingly, I do not treat their findings as evidence of the truth of what is stated therein. The report made findings that Mrs D'Souza used inappropriate discipline. The report was also critical of Mr Walker for not taking formal action against Mrs D'Souza at an earlier stage and also critical of the Language Centre for not persisting in attempting to have more input into and control over Mrs D'Souza's teaching style. The panel recommended Mrs D'Souza be transferred to a mainstream school, on the clear understanding that any further breach of Ministry of Education Discipline Policies would be regarded very seriously.

Mrs D'Souza's evidence and questions asked by her in cross-examination blamed her problems at the Language Centre on an incident involving a teacher, Mrs Briggs, in which Mrs D'Souza, innocently, had failed to rendezvous during a school excursion at the appropriate time. She seemed to blame all subsequent events on a vindictive campaign against her by Mrs Briggs.

Mr Walker's evidence, which I accept, is that, while Mrs Briggs did provide one of the letters of complaint on which the official action was based, Mrs Briggs' role was minor in the disciplinary procedures commenced against Mrs D'Souza.

My conclusion is that Mrs D'Souza honestly believed that she had not done anything which justified disciplinary action against her and honestly believed that she was a victim of a vindictive campaign by Mrs Briggs. However, I conclude that Mrs D'Souza's perceptions were in error and that Mr Walker had received complaints from a number of persons whom he believed to be making genuine complaints and that his own perceptions of Mrs D'Souza, at that time, were that she was prone to using inappropriate actions and words in relation to the children under her care without being conscious of doing so.

I make no findings as to whether Mrs D'Souza was or was not guilty of the specific matters of which she was charged. I gain some assistance from Mrs D'Souza's honest but mistaken perceptions as to the events at the Midway Language Centre in determining the way in which I should approach her evidence on other matters. Otherwise, the events of 1985 and early 1986 are only of assistance in terms of knowing where she was teaching and the official steps taken concerning her prior to her next placement.

McPherson

Steven John McPherson ("Mr McPherson") was in 1986 employed as a Principal Industrial Relations Officer. The relevance of his evidence is purely as a sender and receiver of certain correspondence. According to Mr McPherson, Mrs D'Souza would not have received the full report of the enquiry panel. However, Mr McPherson was the author of a letter addressed to Mrs D'Souza dated 16th May, 1986 addressed to Mrs D'Souza at her correct residential address of the time. The letter is exhibit 48. Mrs D'Souza gave evidence that she had never received this letter. I accept Mr McPherson's evidence that the letter would have been sent in the normal course on 19th May, 1986. I think it more likely than not that the letter was received by Mrs D'Souza.

The matter does take on some importance. Mrs D'Souza indicated no real perception that the enquiry panel had, in effect, found her guilty on a number of the charges relating to inappropriate discipline. As mentioned, her evidence was that she never received the letter. She evinced no realisation that her transfer to Malvern Primary School was of a disciplinary nature.

I accept Mrs D'Souza's evidence as a honest portrayal of her recollections and perceptions.

The letter should have left her in no real doubt as to the results of the enquiry and the reasons for her transfer. The letter commenced by referring to the official enquiry and the date on which it was conducted. The second paragraph advised Mrs D'Souza that she was to be transferred to another location within the western metropolitan region. She was told that officers of the Department would notify her of her new school and commencement date in due course.

The third paragraph advised that allegations concerning the use of inappropriate discipline methods including that Mrs D'Souza had hit students on several occasions were substantiated. She was advised that the Ministry viewed that as a serious matter and she was instructed to comply with the Ministry of Education Discipline Policy in all further dealings with students.

She was advised that the Principal at her new school would be informed of circumstances surrounding her transfer and would be asked to give her assistance regarding her performance as a teacher. She was advised that written reports would be submitted by the Principal at the end of term two and her situation would be reviewed to decide if further action was required. The letter concluded by saying that the author trusted that Mrs D'Souza would take the opportunity to make a fresh start in her new school. It is not clear to me why Mrs D'Souza did not have a greater awareness of the results of the enquiry. Perhaps the letter was misplaced at home before she had a chance to read it. Perhaps she read it and did not fully understand its contents. Perhaps, the transfer without any suspension or fine or other adverse action, even a support group, allowed her to fail to appreciate that the transfer was disciplinary in nature.

The answers to these questions are not of marked relevance to the matters I have to decide. The matters under discussion assist me in two respects. Firstly, it assists me in knowing the steps by which Mrs D'Souza was transferred to Malvern Primary School and came under the aegis of Mr Ryan. Secondly, Mrs D'Souza's failure fully to appreciate the results of the enquiry either from receiving the letter or, in the absence of the letter, through making enquiries of Departmental Officers does make it easier to accept evidence of teachers who interacted with her at Dingley Primary School that Mrs D'Souza often failed to appreciate and understand matters that were being communicated and which she might have been expected as an experienced teacher to understand and appreciate. As a result, her perception of incidents and interaction with others is likely, in many cases, to be unreliable or inaccurate.

Ryan

Kevin Michael Ryan ("Mr Ryan") has been the Principal of Malvern Primary School since 1982. He remained the Principal of that school at the time of giving evidence.

Mr Ryan received a letter from Mr McPherson dated 23rd May, 1986. That letter is exhibit 50. It had been preceded by a telephone call. The letter and the telephone call advised Mr Ryan of Mrs D'Souza's placement at his school following an inquiry into her alleged inappropriate discipline methods. Mr Ryan was asked to provide reasonable assistance to Mrs D'Souza in her endeavours to overcome her earlier difficulties and Mr Ryan was asked to ensure that Mrs D'Souza understood the school Discipline Policy. Mr Ryan was told that, if necessary, a support group should be established and that Mrs D'Souza's progress was to be monitored. A request was made to provide written reports at regular intervals during terms two and three of 1986.

Mr Ryan explained that there were two reasons why his school was suitable. One reason was that the school was in reasonable proximity to where Mrs D'Souza was living at that stage. The other reason related to the fact that Malvern had an unfilled special needs claim. That is, according to the normal formulae which determine how many staff a school is entitled to, the school had a full complement of staff. However, the school had previously been treated as a disadvantaged school and had a special needs allocation. While the particular circumstances that had justified that classification had diminished, the school had continued to claim a right to a special needs allocation. The Department had recognised this claim but, according to Mr Ryan, had not done anything about it at that stage. This made it convenient for the Department to allocate Mrs D'Souza to the school.

Mrs D'Souza attended at the school as arranged and was allocated tasks. Mr Ryan's evidence was that she was largely allocated to small groups. There was some controversy raised in cross-examination about the extent to which Mrs D'Souza worked with larger groups and the extent to which she did the planning for such larger groups. Mr Ryan agreed that there was an extended period where Mrs D'Souza took a class from 1.15 to 3.30 in the afternoon on two days a week when the classroom teacher for that class was away on special training. Mr Ryan agreed that Mrs D'Souza did do the planning of a social studies program for that class. However, he maintained that overall responsibility remained with the classroom teacher and that this arrangement was part of the support program for Mrs D'Souza that was in place.

Mr Ryan also agreed that Mrs D'Souza had certain responsibility for taking students to the girls' High School to work on computers although there probably remained some lack of agreement as to the extent to which Mrs D'Souza had planning and overall responsibility in the computer area. These differences and disagreements in recollection are probably not of particular importance. The overall picture is that Mrs D'Souza's role at Malvern was not as a full-time classroom teacher with full responsibility for a particular grade or class. While her role might have involved autonomy in certain areas, such areas were still limited.

Another matter involving disagreement was Mrs D'Souza's failure to accept that a support group had been formed. Mr Ryan gave evidence that a support group was created consisting of himself, his Deputy and the next most senior teacher in the school. There appears to have been one formal meeting at which the three senior teachers obtained from Mrs D'Souza details of her background and also made sure that she understood the requirements of the school as they related to discipline of students.

Mrs D'Souza did not accept that this was a support group as normally understood.

Mr Ryan also gave evidence that Mrs D'Souza communicated that she felt very aggrieved about her having been moved from the Language Centre and the circumstances of that move. She stated to Mr Ryan that it was racially based and racially inspired and that the charge of badly disciplining children was a trumped up excuse. She indicated to Mr Ryan and his other two senior teachers that she would be commencing an action against the previous Principal for wrongfully charging her on that matter.

Mrs D'Souza's views concerning the support group and Mr Ryan's evidence as to what she said about the matters that had occurred at the Language Centre are consistent with my conclusions expressed earlier that Mrs D'Souza never for one reason or another fully understood the results of the inquiry either as communicated in exhibit 48 or otherwise.

Mr Ryan gave evidence that he had a conversation with Mr Geyer about Mrs D'Souza after the decision had been taken transferring Mrs D'Souza to Dingley Primary School. He was unable to remember who had initiated that conversation. He said that he told Mr Geyer that he would be very concerned about Mrs D'Souza's capacity to step into a normal classroom situation taking the full class program for a group of children. He said that he told Mr Geyer that she lacked experience in the State system and had not gained any experience during the time that she had been at Malvern Primary with a normal classroom program. Mr Ryan also said that he had told Mr Geyer that he would be concerned about Mrs D'Souza's ability to communicate confidently with parents in a mid-year changeover.

When asked whether he elaborated on the communication problems to Mr Geyer, Mr Ryan said that he did not recall other than just saying that there would, in his opinion, be genuine difficulties because of the difficulties some children and some parents would, especially initially, have in understanding Mrs D'Souza and because of a general lack of highly developed communication skills. He said that he did not think that he had mentioned that Mrs D'Souza was of Indian extraction and that he did not recall whether or not he mentioned that she had an accent. He said that he certainly did not highlight the nature of an accent or that there was a foreign accent.

Mr Ryan gave evidence that parents of students in the small group with whom Mrs D'Souza was working had expressed concerns about the extent to which Mrs D'Souza could help the children who were poor in reading because they, the parents, had trouble understanding Mrs D'Souza themselves. Mr Ryan said that he raised this with Mrs D'Souza on at least one occasion and Mrs D'Souza had responded that the parents were being racial in their complaints. These complaints from the parents had caused Mr Ryan not to continue to encourage parents to raise any difficulties they had with Mrs D'Souza directly which would have been his normal course of action.

As to the nature of the communication difficulties, Mr Ryan said it was multi-faceted. He said that it was a combination of accent and difficulty with the concepts used by Mrs D'Souza. He also said that, if Mrs D'Souza was at all anxious, she would tend to speak more quickly and this would make it more difficult for people listening to her to understand.

I was impressed by Mr Ryan and his evidence. Like Mr Walker he seemed to be anxious to say positive things about Mrs D'Souza when he was able to do so, and while he was prepared to criticise her lack of experience and her communication difficulties, these seemed to be genuinely held opinions based on his experience of Mrs D'Souza.

Mrs D'Souza challenged the force of his evidence by reference to Exhibit 49 a report by Mr Ryan to Mr McPherson dated 4th December, 1986 and to written comments on reports provided at the end of the year to Mrs D'Souza which are contained in Exhibit 34.

Exhibit 49 is positive in tone and is not at all inconsistent with Mr Ryan's evidence before me. The exhibit 34 end of the year comments on reports are also positive in their tone. Mr Ryan said of these documents that they are phrased deliberately as a positive; a summary at the end of the year; and something that a teacher can keep if they wish, as what Mr Ryan sees as the positive contributions that the teacher has made. He said that he does not put negative comments into those reports and he has not done so in those contained in exhibit 34. I accept Mr Ryan's explanation of the context of those documents. While those documents may read more positively then exhibit 49 or Mr Ryan's evidence taken as a whole, when one understands the context, I do not think that any such contrast detracts in any way from the value of Mr Ryan's evidence.

Having now retraced something of the history of what preceded Mrs D'Souza's transfer to Dingley Primary School, I can return to the events of the interview in September, 1988 and of the conversation between Mr Geyer and Ms Creighton that preceded it. Before that, however, I need to touch on the relevant statutory provisions.

3. ASPECTS OF THE LAW

3.1 Employment Discrimination

Section 15 of the Act provides as follows:-

"15(1). It is unlawful for an employer or a person acting or purporting to act on behalf of an employer -

(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

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

(c) to dismiss a second person from his employment,

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

...."

The various incidents of which Mrs D'Souza complains are likely to relate to sub-paragraph (b) of s. 15(1). Perhaps, the complaints about being declared a teacher in excess also relates to sub-paragraph (c). Mrs D'Souza's case does not seek to distinguish between the various bases on which discrimination is declared unlawful. It is frequently the case where racial discrimination ordinarily considered is involved or alleged that there is no need to distinguish between whether the particular discrimination was on the basis of race, colour or national or ethnic origin. Often the concepts and the prejudice are intertwined. On occasion, in relation to particular acts of alleged discrimination, one or more of the concepts will become more significant.

When considering racial discrimination in employment, one needs also to have reference to s. 9 of the Act. It is a more generally phrased section that has a capacity to apply to employment relationships. It reads as follows:-

"9.(1). It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(2) The reference in sub-section (1) to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes a reference to any right of a kind referred to in Article 5 of the Convention.

...

(4) The succeeding provisions of this part do not limit the generality of sub-section (1)".

The Convention referred to in the section is indicated by s. 3, which provides as follows:-

"`Convention' means the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December, 1965 and entered into force on 2 January, 1969, being the Convention a copy of the English text of which is set out in the Schedule;".

Article 5 of the Convention, where relevant, provides as follows:-

"In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

...

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remunerations;

...".

There are a number of evidentiary provisions in the Act which were altered as a result of the passing of the Law and Justice LegislationAmendment ActNo. 115 of 1990. This amending Act commenced operation on 21st December, 1990. A significant number of the matters of which Mrs D'Souza complains took place prior to 21st December, 1990. A number took place subsequent to that date. Accordingly, the earlier or pre-amendment law will apply to the events which occurred prior to 21st December, 1990 and the new or amended provisions will apply to those events which occurred subsequently.

3.2 Two or More Reasons

An example of such changes can be seen in s. 18 which deals with the situation where a person does something for a mixture of reasons including one which may bring the person within the provisions of the Act. The change to the provision can be quite significant. I will set out both the old and the new provision as follows:-

Prior to 21st December, 1990, s. 18 of the Act read as follows:-

"18. A reference in this part to the doing of an act by reason of the race, colour or national or ethnic origin of a person includes a reference to the doing of an Act for two or more reasons that include the first mentioned reason, provided that reason is the dominant reason for the doing of the act".

The obligation on the complainant in such circumstances is not as heavy as a result of the amended provisions. Section 18, subsequent to 21st December, 1990 reads as follows:-

"18. Where:

(a) an Act is done for two or more reasons; and

(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the Act);

then, for the purposes of this Part, the Act is taken to be done for that reason".

The Part in question is Part II which includes sections 8 to 18A.

3.3 Vicarious Liability (or not)

Prior to 21st December, 1990, the Act contained no specific provision concerning the liability of employers for the actions of their employees. The opening words of s.15 leave open the question of as to when such liability arises. The then Sex Discrimination Commissioner in the role of Inquiry Commissioner, Quentin Bryce AO discussed this absence at page 6 of her reasons for decision in Surti v. The State of Queensland, unreported, 22nd February, 1993 as follows:-

"Also, at the time of the alleged discriminatory conduct, the Act did not contain any provision for vicarious liability. An examination of the parliamentary debates at the time of the enactment of the Act in 1975 shows that this omission was a purposeful one by the Parliament. Accordingly, the complainant must show that the respondent was directly responsible for the alleged discriminatory conduct".

It is difficult to say in advance exactly when an employer is to be held responsible for things happening in the employment situation. One might think it more likely that an employer would be directly responsible for the actions of senior employees as opposed to the most junior staff. However, an employer may well be responsible for allowing a particular situation to develop or persist. In Surti's case, Ms Bryce was dealing with a situation where the employee complainant worked with and was the subject of racist taunts by fire officers who were employed by a separate corporate entity. Her comments at page 9 of her reasons, however, also have general relevance.

She said:-

"Furthermore, I accept that an employer can be directly responsible under the Act for the creation or tolerance of a racially hostile work environment, which itself is a product of individual acts of a racially discriminatory nature, whether or not they are committed by persons under the direct control of the respondent. This responsibility stems from the duty of an employer to take steps to ensure that its workplace is free of all forms of racial discrimination of which the employer is aware or should be aware. An omission to act can constitute discriminatory conduct, L. v. Water Resources Commission (1985) EOC 92-127, M. v.R. & Anor (1988) EOC 92-229, Kordos v. Plumrose (Australia) Limited (1989) EOC 92-256".

The judgment of Duggan J. in Kordos v. Plumrose (Australia) Limited (1989) EOC 22-256 at p. 77, 513 is of interest on these issues. He said:-

"In my opinion, the acts of the fellow employees of the Plaintiff amounted to racial discrimination as defined by s. 9(1) and thus were unlawful and are now actionable.

The next question is - to what extent is the company liable for the these acts? Mr Stott said that the company was liable in two separate ways. Firstly, it was vicariously liable for the acts of its employees. Secondly, he suggested that the company was directly liable because its officers knew of the situation and had an active duty to suppress the prohibited conduct.

In my opinion, both these submissions are correct. The acts done by the fellow employees of the plaintiff were done whilst actually carrying out their employment. Some of them, namely the discriminatory distribution of knifes and the allocation of meat, related to the manner in which they actually carried out duties that they had. As for the remainder, in my opinion they clearly arose in the course of employment. Despite my express invitation, Mr Strahan [counsel for the respondent in that case] did not really suggest otherwise.

In my opinion, there is also direct liability. For the employer it was `unlawful to do any act...involving a distinction...based on race...which had the purpose or effect of impairing the enjoying or exercise of the right...to just and favourable conditions of work...'.

The conditions of work presently under consideration could only be the product of the conduct of the plaintiff's fellow employees. It was through them that the employer provided `conditions of work'. Had the fellow employees acted as I believed they did here, then prohibited conditions prevailed. It follows that the employer had an active duty to ensure that an individual employee is not subjected to acts that can be categorised as racial discrimination, in so far as such acts affect the conditions of work. It is not enough to remain aloof and ignore a situation which the employer does not condone. To do so will make the employer liable in damages".

I will leave any other comment on the requirements to establish vicarious liability so far as they apply to pre-December 1990 actions to comments on particular incidents.

Subsequent to 21st December, 1990, the situation is provided for fairly explicitly by s. 18A. It reads as follows:-

"18A(1). Subject to sub-section (2), if:-

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person; this Act applies in relation to that person as if that person had also done the act.

18A(2). Sub-section (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act".

The Act does not make specific provision about who has the onus of proof or what standard of proof is required. This applies to the Act both before and after 21st December, 1990. In this regard, I am guided by the remarks of the President, Sir Ronald Wilson, in Djokic v. Sinclair and Central Queensland Meat Export Company (Aust) Pty Ltd. [1994] HREOCA 16; (1994) EOC 92-643 (digest only) at p. 77-419 where he applied the test enunciated in the High Court decision of Briginshaw v.Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Briginshaw's case sets out the civil standard of proof frequently referred to as the balance of probabilities. However, as the President points out in his reasons, where an allegation is serious, one requires "persuasive proof" of the complainant's allegation. Most allegations of racial discrimination are likely to be serious in nature and require the Commissioner hearing the matter to be persuaded by the evidence. Although the President's remarks in that case related specifically to a complaint of sexual harassment under the Sex Discrimination Act, the case involved both racial and sex discrimination and, in my view, the remarks are applicable to complaints under both pieces of legislation.

4. ASPECTS OF THE LAW THAT PARTICULARLY RELATE TO THE INTERVIEW INCIDENT

Mrs D'Souza's employment with the Directorate was continuing. The actual detriment alleged to be suffered by Mrs D'Souza is having been subjected to the dishonest stratagem of being threatened with and shown an unruly class which was said to have caused a previous teacher to have departed on stress leave. It appears that any breach of sections 9 or 15 must relate to either the impairment of the enjoyment or exercise of just and favourable conditions of work or a refusal or failure to afford her the same terms of employment and conditions of work as were made available to other teachers having similar qualifications and employed in work of the same description (namely attending upon a prospective new headmaster).

It seems clear from the evidence that part of Mr Geyer's concerns related to having good teaching staff at his school. Accordingly, to be successful on her complaint, Mrs D'Souza would need to show that the dominant reason for Mr Geyer's actions was the reason of her race, colour or national or ethnic origin.

Ms Creighton's evidence largely raises the issue of Mrs D'Souza's accent and a resultant or associated inability to communicate with students and parents. Mr Ryan and Mr Geyer both expressed concerns about Mrs D'Souza's ability to communicate. While indicating that there were a number of facets to this difficulty in communication, neither of them wholly excluded the fact that Mrs D'Souza had an accent which, I am prepared to assume, was the product of her having grown up in an area which was, in practical terms if not politically, part of India.

The question of law arises as to the extent to which the accent in particular and the broader communication difficulties can be seen to be characteristic of or otherwise part of Mrs D'Souza's race, colour or national or ethnic origin. I will now turn to a

number of authorities on that subject.

5. LANGUAGE AND COMMUNICATION AS PART OF RACE ETC.

The issue of accent and its relationship to discrimination on the grounds of race or ethnic origin or national origin was raised fairly directly in a matter decided by Commissioner Dr R. Balkin under the Discrimination Act 1991 of the Australian Capital Territory. The case is Lyfft v. Capital Television (Pty) Ltd reported by way of digest only at (1994) EOC-557. The allegation by the complainant in that case was that she had been passed over for a job as a television news presenter because of her accent. Ultimately, she was unsuccessful on evidentiary and causation considerations. The report at p. 77,067 presents Commissioner Balkin's conclusions on legal issues in the following manner:-

"Whether accent included in race

The Commissioner noted that the term `race' is not defined in the Act, but s. 4(1)(a) provides that it includes `colour, descent, ethnic and national origin and nationality'. In this regard the Act reflected Article 1 of the International Convention on the Elimination of all Forms of Racial Discrimination 1966 (`the Convention'). The Commissioner continued:

`Neither the Act nor the Convention expressly mentions the term "accent" and the question arises whether unfavourable treatment on the basis of accent is classifiable as racial discrimination. In my view, accent, in some cases, may quite distinctively mark a person as being of a certain race, that is, of a certain national or ethnic origin or extraction. Accordingly, in such situations if a person treats or proposes to treat another person unfavourably on the basis of that person's accent, such treatment or proposed treatment would amount to racial discrimination within the terms of the Act. (See, for example, E. Kallen,Ethnicity and Human Rights in Canada, 1982, at 62-63, who maintains that ethnic categories (and hence race) are capable of being linguistically defined)'".

The New South Wales Equal Opportunity Tribunal in a matter of Campos v. Tempo Cleaning Service (1994) EOC 92-648 (digest only) dealt with an application to strike out under s. 111 of the Anti Discrimination Act 1977 a complaint on the basis that the complaint was misconceived or lacking in substance. The complainant was of Chilean nationality and his first language was Spanish. He had migrated to Australia in 1974. The complainant was employed by the respondent as a cleaner. An employment separation certificate dated the same day that the complainant was dismissed stated that the complainant's employment was terminated due to a language barrier.

After discussing three United States authorities, the three person Tribunal presided over by Mr G. Bartholomew (Judicial member) refused the application to dismiss the complaint on a summary basis. Section 7(1) of the Anti Discrimination Act refers to discrimination on the ground of race; a characteristic that appertains generally to persons of the complainant's race; or a characteristic that is genuinely imputed to persons on the complainant's race. The acts of discrimination include less favourable treatment in the same or not materially different circumstances or segregation.

In pages 4 to 5 of the unreported decision, the Tribunal expressed itself as follows:-

"Clearly the relationship between `race' and `language' is complex but the Tribunal takes the view that where a person, who falls within one of the sub-categories which make up the concept of race, alleges that he has been discriminated against on the ground of `language difficulty', that is an allegation of racial discrimination and can be heard by the Tribunal as such. There is no need here for the Tribunal to consider the problem of accent, and the American cases have only been referred to in relation to the general principle, and as establishing that the view taken by the American courts on that general principle is in conformity with the view reached by the Tribunal.

There appears to be no dispute that the complainant in this matter is a person who falls within one of the sub categories that makes up the concept of race, nor is it disputed that the complainant's first language is not English.

The Tribunal therefore finds that an allegation of `language difficulty' is an allegation of racial discrimination if raised by a person falling within the concept of race".

The matter of Campos v. Tempo Cleaning Services Pty Ltd went to trial and judgment in the matter was handed down by a Tribunal of three whose membership had changed in one respect but which was still presided over by judicial member Bartholomew. A digest of the decision is reported at (1995) EOC 92-720. The decision on trial adds little to the discussion of legal issues contained in the preliminary proceeding and set out above. After a discussion by the Tribunal of the evidence or rather lack thereof presented to it, it found the complaint proven on the basis of what was in the employment termination certificate. The second last paragraph of the reasons sets out the reasoning process:

"A breakdown in management communication may be a plausible explanation, but no evidence was produced to indicate that the content of the employment termination certificate should be disregarded, and that certificate coupled with the earlier decision of the Tribunal to the effect that an allegation of a `language barrier' may constitute racial discrimination, is sufficient under the circumstances of this case to establish a case of unlawful discrimination on the ground of race in the area of employment".

In my view, there are types of employment where an ability to communicate in an effective and unrestricted manner in English or some other specific language is an essential aspect of adequate and effective performance of the requirements of the job. In such a case, discrimination on the basis of an inability effectively to communicate in English which may be related to knowledge of language or may be related to a very noticeable accent will not be characterised as making a distinction on the basis of race or ethnic or national origin even though there is a causal link between the person having grown up in a particular country or region and even though that is a common characteristic of people of those ethnic or racial origins.

Even in those situations, discrimination on the basis of an accent where it did not affect communication skills is capable of constituting discrimination on the basis of race or national or ethnic origin.

In contrast to the former broad example, it is likely to constitute unlawful discrimination if accent or even a lack of a perfect ability to communicate in English is taken into account where the ability to communicate in English or another specific language is only a minor part of the job requirement. By way of example, a refusal to employ a person with only poor communication skills in English as a telephonist is unlikely to amount to discrimination on the basis of race, national or ethnic origin while a refusal to employ a highly qualified theoretical physicist because of the lack of language skills is likely to amount to such discrimination.

These issues have been considered in a much more articulate manner than I am capable of in the Canadian case of Re Fletcher Challenge Canada Limited and British Colombia Council of Human Rights and Others (1992) 97 DLR(4) 550 at 563 where Ryan J. said as follows:-

"There is no question that language is the conveyer of culture. It shapes and is shaped by culture. A culture cannot survive without the ability of its people to give expression to themselves and the way in which they see the world through the articulation of thought and language. History teaches us that one of the oppressor's most effective tools for maintaining power is the eradication of the language of the oppressed.

One could hardly disagree with the member designate that language is directly related to race, colour, ancestry and/or place of origin. But it cannot be said that it is necessarily related. Apart from its capacity to convey culture, language is also a communication skill that may be learned, and the ability to learn any language is not dependant on race, colour or ancestry.

So too in a work environment, language may simply be a means of communicating to accomplish a task. In that context, the important aspect of language is not the expression of culture, but simply a means to communicate. Language is in this context a skill, not unlike the ability to operate a machine. It is the process by which job related information is passed back and forth from employee to employee and/or from employee to anyone he or she meets in the course of performing his or her duties.

Language then, has a dual aspect. It is inexplicably bound with culture in one sense, but in another it is a means of communication unrelated to culture. When one examines the prohibited grounds set out in s. 8, specifically those of race, colour, ancestry and place of origin, it is clear that the legislature has prohibited discrimination on the basis of inherent characteristics that a person acquires or carries with him or her from birth - matters over which an individual usually has no choice. I cannot think of any situation where discrimination on the basis of these grounds would ever be justified. The legislature has given voice through this legislation to the obvious proposition that to deny a person employment on the basis of these personal characteristics is to discriminate improperly per se.

...

As I have tried to illustrate, a rule requiring proficiency in a language is not necessarily one which generalises about a person's ability to perform a job based on membership in a group".

I am of the view then that because of the dual characteristic of language it is not included as a prohibited ground, per se, in s. 8 of the Human Rights Act. Applying the principles set out earlier, I find that the interpretation given to s. 8 of the Act is not one which the words can reasonably bear.

This is not to say however, that discrimination on the basis of language may not in some cases, when scrutinised, be found to actually be based on race, colour, ancestry or place of origin. If, for example, Mr Grewal was denied employment at Fletcher Challenge because he spoke Punjabi, no other inference could be drawn other than the fact that he was being denied employment on the basis of race, colour, ancestry or place of origin. Discrimination can, and usually does, take on more subtle forms. Refusal to employ someone on the stated basis of a language deficiency, when the ability to communicate in a particular language is not necessary to perform the job, would obviously be a veiled attempt to discriminate on the basis of race, colour, ancestry or place of origin. To put it another way, the stated reason for refusing employment would be a deceit; the real reason would be discrimination on the basis of ancestry, or one of the other prohibited grounds. In such cases it may be said that language and ancestry are inextricably bound.

For a Tribunal hearing such a case it will be a matter of examining the evidence to determine whether a language requirement is legitimate, that is, whether it is rationally connected to the performance of the job, or whether it is merely an attempt to discriminate on a prohibited ground".

One area in which I would depart marginally from what Ryan J. has said concerns his reference to deceit. It seems to me that a distinction on the basis of accent or communication abilities could constitute a distinction on the grounds prohibited by the Act without any conscious intention to deceive or to discriminate on the prohibited grounds on the part of the person concerned. If one takes the type of situation which occurred in Lyfft, if a person was refused a job as a news presenter although he or she spoke perfect English because he or she had an accent, while this is likely to constitute discrimination on a prohibited ground, the discriminator may not be either consciously aware that he or she was discriminating on this basis nor using the accent as some form of deceit or stratagem. For example, the decision might have been made in order to present some preconceived form of marketing image and the question whether it was discrimination on the grounds of race may not have been considered.

Subject to this caveat, the approach of Ryan J. expresses in a form with which I agree much of the complexity about the way in which accent and language skills and the prohibited grounds of discrimination interact. In particular, I find great assistance in the concluding paragraph of the extract in which Ryan J. stresses that the task of the relevant Tribunal is to examine the evidence to determine whether, in a particular case, taking into account issues of language or accent is legitimate or whether, in the particular case, such considerations involve a breach, in this case, of the Racial Discrimination Act.

With these complexities in mind, I will now turn to the events surrounding Mrs D'Souza's interview at the school with Mr Geyer in order to determine whether or not any breach of the Racial Discrimination Act has occurred.

6. BACK TO THE INTERVIEW

For reasons which I have touched upon already, I have formed the view that Mrs D'Souza's perception of particular incidents is not always likely to be accurate. This includes her recollection of conversations in which she has taken part. Her failure to have obtained a clear understanding of the disciplinary inquiry process is attributable, in my view, to these problems of inaccurately perceiving events. That she attributed all of her problems at Midway Language Centre to vindictiveness on the part of Mrs Briggs is another relevant example. A further example is the belief that she held that there was nothing in the nature of a support group at Malvern Primary School. Part of her problems with accurate perception may be related to an apparent tendency to blame many of her adverse experiences on racism that she perceived in others.

A number of witnesses with whose evidence I have not yet dealt because it relates to incidents subsequent in the chronology to that with which I am currently dealing gave general evidence that Mrs D'Souza failed to pick up what was going on in group meetings and often had to have things explained to her or asked questions which one would not have expected of someone in her position who had a reasonable understanding of what was happening around her.

For these reasons, where Mrs D'Souza's evidence differs from that of other witnesses, I can gain only limited assistance from her evidence. This applies to the incident currently being considered.

I gained a generally favourable impression of Ms Creighton. I gained the impression that Ms Creighton was generally favourable to Mrs D'Souza. On aspects of Mrs D'Souza's competence as a teacher, Ms Creighton gave the impression that she would give Mrs D'Souza the benefit of the doubt. On those issues, I am likely to prefer the evidence of the teachers who worked more closely with Mrs D'Souza and were more prepared to scrutinise Mrs D'Souza's teaching.

However, nothing was raised in cross-examination of Ms Creighton which would suggest that her recollection of the events of the interview or the discussions that she had with Mr Geyer preceding that interview were in any way jaundiced by any sympathies that she had for Mrs D'Souza or antipathy that she had for Mr Geyer. In answer to a direct question from me, much later in the hearing, Mr Geyer suggested that Ms Creighton was jealous of him and had been disappointed when he had been appointed Principal over her. He suggested some storminess in the working relationship between himself and Ms Creighton in their relationship as Principal and Deputy Principal. This matter was not raised in cross-examination of Ms Creighton. She was given no opportunity to comment on this. While I am prepared to accept that there may have been some professional rivalry between Ms Creighton and Mr Geyer, the state of the evidence is not such as would cause me to find that Ms Creighton's evidence and in particular her recollection of events in September/ October 1988 was affected by any such rivalry.

Ms Creighton struck me as an honest witness. She conceded that there was difficulty in recalling the intricacies of conversations that had taken place some six years earlier. I accept her as a witness telling the truth to the best of her ability and recollection.

I generally formed a favourable impression of Mr Geyer. Many teachers and other employees who worked with or under him praised his dedication and professionalism. His professionalism and dedication was also apparent from the witness box. Teachers and others who worked with or under Mr Geyer testified that they had never seen any hint of racism on his part. Two such witnesses were of Indian sub-continental extraction. The evidence of all of these witnesses is of assistance in attempting to resolve the competing versions of what happened in September/October, 1988.

I am assisted by the evidence of Mr Ryan. As I have mentioned, I found him an impressive and truthful witness. I find that he has given a truthful and, as far as might be expected, an accurate version of what transpired between him and Mr Geyer prior to Mr Geyer's conversations firstly with Ms Creighton and then Ms Creighton and Mrs D'Souza.

Mr Geyer was aware (from his conversation with Mr Ryan) that Mrs D'Souza had been on some form of disciplinary charge. It is most likely that this information came from Mr Ryan although Mr Ryan was somewhat unsure as to the extent to which this had been conveyed. I find that Mr Ryan had communicated to Mr Geyer two important facts about Mrs D'Souza. He had communicated that Mrs D'Souza was inexperienced in classroom teaching; that she had had no full classroom experience at Malvern Primary School; and that Mr Ryan had concerns about her ability (arising partially from inexperience) to cope with full responsibility for a grade in the Victorian State School system.

Second, I find that Mr Ryan had communicated to Mr Geyer his concern that Mrs D'Souza had problems communicating with both parents and students and his resultant concern that this would cause difficulties if Mrs D'Souza had full responsibility for a class. It is difficult to make any findings as to the precise form in which these concerns about Mrs D'Souza's ability to communicate were expressed. There may have been reference to Mrs D'Souza being of Indian extraction; there may have been reference to Mrs D'Souza having an accent; but I feel sure that Mr Ryan would have communicated this as a genuine and multi-faceted communication difficulty of the nature he expressed in evidence. Seen through Mr Ryan's eyes, such communication difficulty appeared to be much more associated with characteristics pertaining to Mrs D'Souza as an individual such that her accent or other aspects of her Indian ethnic and cultural background were merely incidental.

As a result of this conversation, Mr Geyer had genuine concerns about Mrs D'Souza's ability to perform the role likely to be allocated to her in the school. Mr Geyer was genuinely concerned about the fact that Mrs D'Souza had been on a disciplinary charge of some kind. He was concerned that Mrs D'Souza would have communication difficulties. He was genuinely concerned about her apparent inexperience in classroom teaching with other than small groups.

Against these findings, I generally prefer Ms Creighton's version of the conversations currently being considered. I find that Mr Geyer's concerns did lead him to suggest a stratagem by which the prospective new teacher would be told that she might get a difficult class which had caused its previous teacher to go on stress leave and which was currently causing difficulties for its teacher. I find that Mr Geyer was motivated to do this both by his concern for the children at his school and also by a feeling that his school was treated somewhat unjustly by having Mrs D'Souza allocated to it without giving Mrs D'Souza a choice between a number of schools to whom she might go. There was a degree of inappropriateness in what Mr Geyer did at the time although one can understand Mr Geyer feeling that it was perhaps only a harmless fib, of a lighter rather than a darker nature.

In one respect, I am not prepared to make a finding based on Ms Creighton's evidence. At page 70 of the transcript, her evidence which I have summarised earlier was as follows:-

"Question. "Do you remember any other incident regarding his phoning the staffing unit to appoint another teacher?"

Answer. "Well, yes. I don't know how fully you want these questions answered and - but I can remember at the time when Mrs D'Souza was appointed and Mr Geyer was not terribly happy because of the fact that she had, supposedly, a - or had a D and D charge previously and that she had an accent, etc. He rang staffing - I can't think of the name of the chap now - to see if, by any chance, she could be given another school so he wouldn't - but she could be moved from Dingley and given another school, and we would get an alternative teacher in her place".

In the above passage, Ms Creighton makes specific reference to the word "accent". It is clear from the passage that there was a degree of shorthand in Ms Creighton's evidence. I am not satisfied that Mr Geyer's actions or his explanation of the actions was directed specifically or in any significant way at Mrs D'Souza's accent. Rather, I accept that his concern and his expression of that concern was directed more broadly at the communication issues of a more general and complex nature as conveyed to him by Mr Ryan and as described by Mr Ryan in evidence. Mr Geyer then had an opportunity to assess Mrs D'Souza in the interview prior to his writing exhibit 59. His evidence before me indicated his concerns being based with a broader type of communication difficulty and I accept his evidence on that point.

As in Mr Ryan's case, Mrs D'Souza's accent (and to the extent that her accent is an inextricable aspect of her racial and ethnic origins) was purely incidental. Accordingly, any distinction, exclusion, or restriction involved in Mr Geyer's actions in his conversations with Ms Creighton and with Ms Creighton and Ms D'Souza was not based on race, national or ethnic origin or any of the other prohibited bases contained in sections 9 or 15 of the Act.

On this aspect of the complaint, I find that no contravention of the Act occurred.

I have mentioned that Mr Geyer's actions involved a degree of inappropriateness although I have also said that one may understand that, amid the pressures of day to day work, he perceived such actions to be harmless.

It is likely that such actions were not harmless. In fact, it can be seen to have rebounded in a quite deleterious manner on Mr Geyer, Ms D'Souza, the Directorate of School Education, and many of the participants in this hearing.

Although it is likely that Mr Geyer and Mrs D'Souza would have come into conflict absent Mr Geyer's actions in September/October 1988, Mrs D'Souza's perceptions of the events over the following years were no doubt strongly affected by the version of those earlier events which she received from Ms Creighton. While, in what follows, I have found Mr Geyer's subsequent actions to be without reproach, one can understand Mrs D'Souza colouring subsequent events because of what had happened on the earlier occasion. If the earlier incident had not occurred in the way which it did, Mrs D'Souza may not have so strongly felt that subsequent incidents were due to racism on Mr Geyer's part and the trauma unavoidably associated with this hearing for all involved in it may have been avoided.

7. COMPLAINTS FROM PARENTS

The particular complaints are three documents that form part of exhibit 2 and are referred to in exhibit 2 as being enclosed as background information. The letters in question comprise a letter from Jan Spink dated 2nd December, 1988; a letter from Philippa Mills dated 21st November, 1988 and a letter from Pam Young dated 2nd December, 1988.

Mrs D'Souza's evidence on the letters was brief. She said that Mr Geyer, within a month, had told her that he received complaints from parents against Mrs D'Souza as anticipated by him. Mrs D'Souza said that this was anticipated because he had told her that she would not be acceptable in the school community; that she would be getting lots of complaints.

Mrs D'Souza made it clear to me in questions directed to what her case was that she believed these letters had been in some way inveigled from parents by Mr Geyer motivated by his feelings of prejudice against Mrs D'Souza. Mrs D'Souza was not able to cite any evidence going to that conclusion. Such a conclusion would only be by way of inference which might arise if other events had shown Mr Geyer to have a very strong racially based hostility against Mrs D'Souza.

Ms Creighton gave evidence that Mr Geyer asked her to cause parents to put into writing any complaints that they had against Mrs D'Souza. She said that this was an unusual process and had not occurred with other teachers.

Mr Geyer gave evidence that towards the end of the term he had received complaints from parents. He said that these complaints were wholly unsolicited by him. He said that, as well as receiving three letters which are part of exhibit 2, he had been attended upon by at least two of the three authors with oral complaints about Mrs D'Souza's teaching methods. Ms Creighton was unable to say when Mr Geyer had told her to have complaints put in writing. She said that Mr Geyer had made the request to her in the context of a possibility of bringing a case against Mrs D'Souza. She said that her conversation with Mr Geyer was not in the first year but was probably some time during 1989. A disciplinary proceeding was brought against Mrs D'Souza during 1990. Exhibit 2 is the official letter to the Personnel Branch formally advising of the implementation of that process. It may well be that any request was made to Ms Creighton at a time when Mr Geyer had already formed sufficient concern about Mrs D'Souza's performance to be contemplating disciplinary action.

There is no evidence on which I can find that Mr Geyer in any way sought or instigated the complaints from parents. I accept Mr Geyer's evidence that these complaints were unsolicited. While I accept that, at some stage, Mr Geyer did say to Ms Creighton that she should ask parents to put complaints about Mrs D'Souza in writing, I find that this was not during 1988. I am of the view that that was not an improper question to make of a Deputy Principal (or of parents) where a Principal had real concerns about the competence of a teacher. Mr Geyer's evidence as to when the complaints commenced is supported by the dates of the letters. I find that any conversation he had with Mrs D'Souza about the existence of the complaints post-dated the receipt of the complaints and was later in the term rather than within the first month.

On the issue of complaints from parents, there has been no contravention of the Act.

8. FAILURE TO ALLOCATE TO CLASSROOM TEACHING AT THE BEGINNING OF THE 1989 YEAR

Mrs D'Souza did not give extensive evidence concerning this aspect of her claim. In exhibit 63, Mrs D'Souza's complaint to the Equal Opportunity Board dated 1st October, 1992, she states that she was not allocated a grade at the beginning of 1989.

There appear to be two aspects to the claim. One is the failure to allocate Mrs D'Souza to classroom teaching duties. It is common ground that Mrs D'Souza was not allocated to normal classroom teaching and was in fact given integration responsibilities.

The second aspect of the complaint is that during the early part of 1989, Mrs D'Souza was simply left in her classroom with nothing to do. Significant evidence on this aspect comes from Ms Creighton.

Ms Creighton said that, at the beginning of the 1989 school year, she was embarrassed that Mrs D'Souza was sitting in a spare room with nothing to do. Ms Creighton said that Mr Geyer was not prepared at any stage to put Mrs D'Souza into a classroom. As a result of Mrs D'Souza's inactivity, Ms Creighton allocated her to a job involving the school computer system. Ms Creighton said that relieving teachers were coming into the school to relieve while Mrs D'Souza was left without responsibility.

In cross-examination Ms Creighton agreed that the decision with regard to Mrs D'Souza's allocation was made by the Administration Committee though Mr Geyer had the final say. She agreed that a majority of the Committee agreed that Mrs D'Souza should not be allocated to classroom duties but be given integration responsibility. One of the matters raised in the discussion concerned complaints that had been received by Mr Geyer about Mrs D'Souza's classroom teaching during 1988. She agreed that the primary responsibility undertaken by Mrs D'Souza during 1989 was integration responsibilities. Ms Creighton's evidence did not address when that meeting of the Administration Committee took place.

Mr Geyer said that the Administration Committee meeting took place towards the end of the 1988 school year. He said that the consensus position of the Administration Committee was that Mrs D'Souza would be allocated to integration and special needs responsibilities. Mr Geyer gave evidence that the minutes of that meeting of the Administration Committee were not able to be located and they were never produced to the Commission. The matters made resolution of this particular controversy a little more difficult than might have been the case if the minutes were available.

Mr Geyer stated however, that the decision of the Administration Committee was formally announced along with other allocation decisions it had made before the end of the school year. On that basis Mrs D'Souza should have known prior to the end of the 1988 year that her responsibilities in the next year would relate to integration and special needs.

Mr Geyer agreed that, during 1989, Ms Creighton allocated computer responsibility to Mrs D'Souza as an additional responsibility. This came within Ms Creighton's responsibility as Deputy Principal.

Mr Geyer denied that, for the first term of 1989, Mrs D'Souza had no responsibilities in the school and sat in the staffroom. The question that was put to Mr Geyer by his counsel related to the first term as a whole. The answer involved a denial. On my reading of Ms Creighton's evidence she did not suggest that the period of Mrs D'Souza's activity extended for the whole of the first term.

Mr Geyer also said that he took over a significant part of the normal integration duties because he felt Mrs D'Souza with her lack of communication skills would not have been able to handle these parts of the task. These parts involve the chairing of various support groups and communication with parents and other persons associated with the children being integrated into the mainstream of the school.

Mr Geyer's evidence that the decision was taken by consensus in the Administration Committee towards the end of 1988 is supported by another teacher who attended that Administration Committee meeting, namely Barry Parker ("Mr Parker"). Mr Parker confirmed that the meetings took place late in 1988 in preparation for the 1989 year. Mr Parker also confirmed that there was an announcement about teaching responsibilities for the following year after those meetings. He said that Mr Geyer spoke to the staff in general and the decisions were published in a newsletter for the parent body. Mr Parker said that there was no disagreement at the end of the Administration Committee and that there was lots of discussion as to what was the best role for Mrs D'Souza to play in the school during 1989.

It is not easy to resolve completely the evidence on this issue. However, I find that the Administration Committee and Mr Geyer made a decision at the end of 1988 to allocate Mrs D'Souza to special needs and integration responsibilities for the 1989 school year. Although the minutes for that meeting have not been produced, I accept that there is no adverse inference to be drawn because of that and I accept Mr Geyer's evidence that the minutes have simply been misplaced and are unable to be produced for that reason.

I am fortified in the finding that the events did take place towards the end of 1988 and were communicated by the fact that this was the practice that took place every year. There seems to be no real controversy about that in the evidence.

I think it likely that, because of the lack of understanding to which I have referred previously to which Mrs D'Souza was prone, she did not key into the announcements nor realise that they had a relevance for her. This may have led to her coming to school in 1989 assuming that she would be doing exactly what she did the previous year. This may have seen her attending at school to find that she was not allocated to a class. She may not have made enquiries straight away but waited for someone to come to her to explain what she was doing. Alternatively, she may have been told that she had integration responsibilities but not known how to go about those. Such happenings may have led to Mrs D'Souza sitting in the staffroom for a period of time without knowing what she was supposed to do or how to start doing it. Such an eventuality may have been avoided in the case of a teacher with more savoir faire. This may have led to a situation where Ms Creighton came across Mrs D'Souza and gave her the computer work to go on with in the meantime.

The early part of the school year is likely to be a busy time for a Principal. Especially if Mr Geyer had made a decision to do most of the communication work, he may have been reluctant to set Mrs D'Souza off on integration tasks until he had time to go through it with her. This may have led to a delay of some days perhaps even into a second week. In any event, it is quite possible that a period of inactivity looms larger in the recollection of Mrs D'Souza and Ms Creighton than was the case at the time. In the same way, Mr Geyer may have been unaware of the period of inactivity or simply treated it as having no great significance at the time particularly if he knew that Mrs D'Souza had been allocated the computer duties in the meantime. In fact, if he was aware of that, he may not have treated the task of getting her involved and on track with her integration duties with as much urgency as might otherwise have been the case.

There is some speculation in attempting to pin down exactly what happened at the beginning of 1989. However, it seems clear to me and I make the finding that any period of inactivity was not due to any malicious activity on the part of Mr Geyer. In particular, there is no evidence that the events were influenced by any racial prejudice on the part of Mr Geyer and no breach of sections 9 or 15 of the Act occurred.

9. 1990 DISCIPLINE PROCEDURES

Under this heading, I intend to deal with the fourth and fifth complaints as categorised in my summary of Mrs D'Souza's allegations. The reference to the fourth and fifth items appear at pages 3 and 4 of the these reasons. The disciplinary procedures were a continuing process that started about 13th March, 1990. The fifth of the allegations relates to midway through the procedures where Mrs D'Souza complains that, although a support group had reported favourably on her teaching, Mr Geyer decided to continue the disciplinary procedures.

Mrs D'Souza's evidence-in-chief on these points was fairly brief. She complained that Mr Geyer forced on her a support group which she described as a group of teachers to help a teacher who was in need of certain teaching strategies. She said that she told Mr Geyer that she did not want a support group and he responded by saying that she must take it or resign. He said that, if she did not resign, he would make a complaint against her to the general manager. Mrs D'Souza said that, while she initially said "go ahead and make a complaint because I am confident of my teaching ability", she was coaxed by Mrs Dianne Maddison to accept a support group and so she did.

She said that the support group gave a favourable decision but that Mr Geyer did not accept this and he told the support group that he could override their decision. He urged Mrs D'Souza to take another support group but she refused. Mrs D'Souza said that these events took place during 1990. She said that Mr Geyer subsequently did lodge a complaint against her with the Industrial Relations Department. The processes are reasonably well documented by exhibit 2.

Exhibit 2 is a letter from Mr Geyer to the general manager of the Personnel Branch dated 15th May, 1990. It contains a great many attachments that were forwarded with that letter. The letter details Mrs D'Souza's allocation to integration responsibilities for the 1989 school year. It states that she handled these responsibilities in her own best interests and in the best interests of the school. The letter states that, in 1990, there was no alternative but to place Mrs D'Souza in a grade. This is because the integration role had become full-time and needed a teacher with special education qualifications. The letter states that Mrs D'Souza was placed in a very easy class. A senior class was avoided because Mrs D'Souza was believed not to have the capacity to control the children. Classes were avoided in which there were children whose brothers or sisters had previously been in Mrs D'Souza's class. Two integration children were allocated to another class to lighten further Mrs D'Souza's load.

The letter states that Mrs Terry, a senior Band Two teacher was the Grade Level Co-Ordinator and she helped and supported Mrs D'Souza with lesson planning and assistance. Mrs Terry's class was next door and the two rooms were accessed by a folding door. The letter states that time release was organised so that both teachers were free together so that they could jointly plan their activities.

The letter then went on to say that, on the basis of Mr Geyer's personal observations and of his acting Deputy Principal, after discussion with Mrs D'Souza's Grade Level Co-Ordinator and in response to verbal and written complaints from parents, Mr Geyer believed that Mrs D'Souza's performance as a teacher was unsatisfactory and that she did not meet the requirements of the rights of the children to be taught by a competent teacher.

The letter then spoke about efforts made to assist Mrs D'Souza and to head off complaints and conflict. The letter then set out steps followed in the complaints procedure up to that point in time. The letter refers to a meeting that took place on 13th March, 1990. At this meeting, Mr Geyer advised Mrs D'Souza that a complaints procedure would follow and that a written letter of complaint would be issued after twenty four hours notice. Mr Geyer said that Mrs D'Souza's reaction was volatile and insubordinate. He said that, with much gesticulating, she suggested among other things that those who complained would be cursed and that Mr Geyer was her arch enemy and that she cast doubts on Mr Geyer's competence, loyalty and judgment. The letter states that Mr Parker, the Deputy Principal and Mrs Maddison were present. The letter which was handed to Mrs D'Souza on the following day is the first of the attachments. It particularises four areas of complaint, namely manner and attitude exhibited to the children; class control and discipline; communication skills in that children do not clearly understand instructions or expectations; and classroom management.

The second attachment is a letter dated 20th March, 1990 from Mrs D'Souza. She states in the letter that she rejects in full subjective criticisms outlined by Mr Geyer. She says that she has always conducted her classes with skill and the dedication that the profession deserves and will do so in the future. She states that Mr Geyer's views are of no consequence. She asked for meetings with the parents who had written letters of complaint. In a letter dated 25th March, 1990 Mrs D'Souza responds in detail to one of the letters of complaint, namely, a letter from parents called Mracek.

Six letters from parents were enclosed and, as well, the letters from 1988 to which I have referred earlier in these reasons, were included as attachments.

The letter of 15th May, 1990 went on to describe the receipt of Mrs D'Souza's written response and a further meeting at which Mrs D'Souza was advised that her written reply was inadequate and that the complaints procedure would follow. Mr Geyer said that Mrs D'Souza's reaction was to suggest that the correct procedures had not been followed; to demand for her lawyer a copy of comments from teachers with whom Mr Geyer had consulted and to reject the need for a support group. Later Mr Geyer said Mrs D'Souza claimed that she would have a support group if Mr Geyer wished. During that meeting, Mrs D'Souza, according to the letter, claimed that racial prejudice was the cause of her problem and inferred that many teachers on the staff were not competent to help her in that she had seen them teach when she was an integration teacher the year before.

The letter stated that a support group had been set up. It stated that Mrs Terry was rejected by Mrs D'Souza as was Mr Parker and that Mrs Lee, Mrs Green, Ms McMaster, and Mrs Maddison were chosen by Mrs D'Souza as suitable to be on the support group. Again, Mr Geyer claimed that Mrs D'Souza was emotional during the meeting and reflected on his judgment claiming that Mr Geyer was vindictive and inferring that he had no knowledge of curriculum and was not loyal.

The support group met on 26th March according to the letter. Mrs D'Souza decided that she would talk to Mrs Lee about reading, Ms McMaster about social studies and Mrs Green about spelling. The support group operated for four weeks. The letter stated that a meeting took place on May 7th. Before that meeting, Mrs D'Souza stated that she did not want the period of support extended. On the same day, Mr Geyer informed Mrs D'Souza that he considered it necessary to lodge a formal statement of complaint. The letter went on to say that Mr Geyer did not believe that the assistance had made a marked degree of difference because there was both a reluctance and an inability on the part of Mrs D'Souza to make the required adjustments. The letter outlines in detail the reasons why Mr Geyer continued to be of these views. Mr Geyer stated in summary that he believed that Mrs D'Souza's teaching was unsatisfactory due to her inadequate class control, her poor classroom management techniques and her inability to communicate clearly and establish an appropriate rapport with the children. The children were still failing to receive competent instruction as is their right, he stated in the letter. He went on to outline continuing complaints from parents including threats in recent days by one parent to take his children from the school.

In the third last paragraph of the letter, Mr Geyer said that he must make it abundantly clear that Mrs D'Souza was a very conscientious teacher and worked extremely long hours. He stated that, until recently, she had been extremely courteous and co-operative. He regretted that she did not have the necessary capacity to teach competently. He said that he wrote reluctantly in the full knowledge of the amount of the stress and anxiety that this matter had already caused for all concerned.

The letter also had annexed to it the report of the support group. As Mrs D'Souza stated, it was a favourable report. It said that, based upon the members' observations, the children in Mrs D'Souza's class were producing work of an appropriate standard; they did not have behaviour problems; they were working at an acceptable noise level; Mrs D'Souza's instructions were clearly understood by children; and the classroom was conducive to a good working condition. After talking about efforts that Mrs D'Souza had made to improve her performance, the group concluded by saying that, in their opinion, Mrs D'Souza was performing satisfactorily as a classroom teacher. Each of the members of the support group signed the report.

Mr Geyer as principal had a responsibility to the students at his school and to their parents and to the Directorate to initiate disciplinary action when he considered it appropriate. There is nothing intemperate or, on its face, unfair about the contents of exhibit 2. In fact, Mrs D'Souza's written responses are provocative in the way in which they reject the relevance of Mr Geyer's opinion. However, such a response is understandable from a teacher of long standing whose teaching methods are so dramatically under question. On the other hand, Mr Geyer does in exhibit 2 appear to be at pains to stress Mrs D'Souza's dedication and the long hours worked by her. This does not smack of prejudice or unfairness.

Mr Geyer did go out on a limb when he decided to proceed with the disciplinary proceedings notwithstanding the favourable report from the support group. However, it was his role to exercise a judgment in the area and he was not bound to follow the recommendations of the support group. Mr Geyer apparently acted fairly by including the report of the support group and the documentation accompanying his letter. He had an ongoing responsibility to ensure competent teaching of the children at the school which is possibly something to which the members of the support group did not have to pay so much attention in making their report.

While the actions taken by Mr Geyer were dramatic (and he acknowledges as much in his letter) there is nothing on the face of the documentation that suggests that his actions were motivated by racial prejudice. The documents do not suggest therefore any breach of sections 9 or 15.

After exhibit 2 was sent, correspondence went back and forth between Mr John R. Evans, an assistant general manager of the Personnel Branch and Mrs D'Souza (exhibits 40, 41 and 42), and the matter ended fairly inconclusively with the Personnel Branch accepting that Mrs D'Souza had made improvement and that there was no need to proceed with the disciplinary complaint. Mrs D'Souza was not particularly happy with this result and its inconclusiveness as seen in exhibit 4, her letter dated 4th November, 1990, a response to exhibit 3 a letter from Mr Evans dated 25th October, 1990.

The results of the process are not of great importance as it is Mr Geyer's actions in commencing the procedures which are under question. While I might have gained some assistance from a definitive conclusion one way or another, particularly if I had heard from the person who arrived at those conclusions, my findings must be based on my own impressions formed on the evidence that I heard.

Lewis

Mrs D'Souza called as a witness Harry Bruce Lewis ("Mr Lewis"). Mr Lewis taught with Mrs D'Souza. He recounted what he called key words and conversations that he had with Mr Geyer as to why Mrs D'Souza had not been allocated a class at the beginning of 1989. Mr Lewis quoted Mr Geyer as saying that there was a language barrier with Mrs D'Souza; that, if she was put into a classroom, there would be many complaints from parents; that she did not need the money; that there is a case against her. When cross-examined by counsel assisting about the language barrier, Mr Lewis said that his own impressions were that there was not a barrier as such; that you may have to concentrate a little bit harder to understand, but that he did not think that that was a barrier. He did not think that it would effect Mrs D'Souza's performance as a teacher.

Nothing in Mr Lewis's evidence goes to suggest that Mr Geyer was racially prejudiced towards Mrs D'Souza. Perhaps the only issue that is not consistent with Mr Geyer's own descriptions of his motivations is a reference to the statement that Mrs D'Souza did not need the money. While that might be an irrelevant matter to take into account in making decisions as a Principal, it appears to have no relevance to the complaint brought pursuant to the Act.

Parker

Mr Parker gave evidence from his own experience of having observed Mrs D'Souza having problems controlling the children. At Mr Geyer's request he sat in her classroom on a couple of occasions and noticed that she had a lack of control as far as those members of the class with whom she was not specifically dealing were concerned. He felt that her control strategies were deficient and that this was giving rise to the control problem.

Mr Parker's evidence also supports aspects of Mr Geyer's decision in that he gave evidence that, while doing integration teaching in a room next door to that used by Mrs D'Souza's class, in the period after the support group had reported, Mr Parker's observations were that the noise level had not reduced to any significant degree. Mr Parker communicated this information informally to Mr Geyer.

I accept Mr Parker's evidence as a honest and genuine account of his observations.

Terry

Marcia Yvonne Terry ("Ms Terry") arrived at the school at the start of second term in 1989. In 1990, she was the Grade One Co-Ordinator for the school. Her class was next door to Mrs D'Souza's. She said that she found a lack of co-operation by Mrs D'Souza in terms of having integrated Grade One programs.

Ms Terry observed excessive noise coming from Mrs D'Souza's classroom. She noticed children out in the corridor of Mrs D'Souza's classroom and children from Mrs D'Souza's classroom hanging around the taps near the toilets. All of these things indicated to Ms Terry, a lack of control and inappropriate discipline methods in Mrs D'Souza's teaching. Ms Terry had no real idea as to how long the support process continued. However, she was able to say that she noticed no particular change or improvement during the year.

Ms Terry was one of the teachers whose evidence I have referred to earlier who gave evidence that Mrs D'Souza in staff meetings appeared not to understand a lot of what was being discussed. Ms Terry accepted that she herself might often ask silly questions but felt that Mrs D'Souza's questions were of another kind which suggested that she had not been listening to what was said and had not understood a lot of the new policies, programs and other matters that were happening. She seemed not tuned in according to Ms Terry.

Ms Terry said that most of these questions were directed to Mr Geyer and that he answered in a very kindly and basic way in order to assist Mrs D'Souza's understanding.

Ms Terry was asked whether she had seen any evidence on the part of Mr Geyer that he was racially prejudiced against Mrs D'Souza. She said that she had thought about this a lot but, after thinking about it very hard, she had never seen any evidence that Mr Geyer was racially opposed to Mrs D'Souza.

Ms Terry also gave evidence about Mr Geyer's prejudice or otherwise as shown against other people of different national backgrounds. Ms Terry said that Mr Geyer was good friends with Mrs Lynette Lee, a person of Asian background and Mr Geyer appeared to rely on Mrs Lee very heavily for lots of different things.

I accept that Ms Terry's evidence as an honest and genuine account of her observations.

Lee

Lynette Lee ("Ms Lee") had taught at Dingley Primary School over a long period of time - some fifteen years at the time of the hearing. She gave evidence that Mrs D'Souza appeared not to grasp immediately things that were said in staff meetings and that matters had to be rephrased and explained to her in a little more detail. During 1990 she was teaching either Grade Two or Grade Three and was at the far end of a corridor from Mrs D'Souza's room. Ms Lee observed that Mrs D'Souza had a noisy classroom.

It was concerning the findings of the support group that Ms Lee's evidence was most relevant. She appeared to be distancing herself somewhat from the conclusions of the report. She stated (in answer to a question asking what were the conclusions of the report) that the group thought that, if Mrs D'Souza followed through with the suggestions that had been made, her teaching would be satisfactory but just satisfactory.

I questioned Ms Lee about the apparent difference between her report and the statement in evidence and her explanation was significant. She stated that the group was a support group and wanted to support Mrs D'Souza and to get her to be satisfactory. She stated that the group did not want Mrs D'Souza to fail. She said that it was on the shoulders of the group and it was important for the group members that they do the best they could. She said the group's decision would be just satisfactory. The picture she painted was that, in discussions, the members of the group had doubts whether Mrs D'Souza was satisfactory but that they thought since it was a fairly low standard to be achieved, that they could legitimately say that Mrs D'Souza had achieved it.

There are two ways in which I can view Ms Lee's evidence. I can accept her explanation as to why the tenor of her evidence and the judgments it contained differed from those in the written document produced at the time. Alternatively, the differences might suggest that Ms Lee was, perhaps because she was a good friend of Mr Geyer, tailoring her evidence to support his case.

My conclusion is that the former is the correct approach. I am satisfied that Ms Lee is a sympathetic and friendly colleague and was prepared to give Mrs D'Souza the benefit of considerable doubts held at the time. This was done out of a genuine, kindly attitude and a conception of the role as a support group. I accept that Ms Lee's conclusions as part of the support group were more kindly than honest and that this caused her some difficulties when she came to be questioned about them. I accept that, when she came to give evidence, she honestly related the thought processes that had taken place at the time that the support group had made its report. I find that her evidence was honest and in no way tailored to benefit Mr Geyer.

McMaster

The second member of the support group was Ms Jane McMaster ("Ms McMaster"). She also served on an AST 1 assessment panel at a later date. I was informed from the bar table that Ms McMaster was not able to be located. Although Ms D'Souza sought that I draw adverse inferences from the fact that she was not called as a witness, I am of the view that no adverse inference arises.

Green

Lynette Green ("Ms Green") commenced teaching at Dingley Primary School and her teaching career generally in 1988. She was a member of the support group during 1990. Of her observations of Mrs D'Souza's classroom after she had been appointed to the support group, she said that Mrs D'Souza's classroom required the windows opened to allow more light to come in; that the noise levels in the classroom were unusually high; and that certain children were not particularly well controlled. She gave evidence of suggestions that the group made to Mrs D'Souza to improve her performance.

Like Ms Lee, Ms Green qualified the conclusions of the support group by saying that her judgment was that Ms D'Souza would be satisfactory if she implemented and continued the suggestions of the support group. Also when questioned by me, Ms Green adopted a suggestion that the report was more sympathetic and favourable and that Ms D'Souza was not as good, probably, as described in the report. She added that she did not know how to explain it other than that a person has to be in that situation at the time and that the group had thought that they would do their best for Ms D'Souza to help her and that they did not like someone to go down.

My reaction to Ms Green's evidence is similar to that of Ms Lee. I think she was honestly describing the situation when she said that the group had been as favourable as they could be to Mrs D'Souza because they did not like the thought of the continued disciplinary procedures.

After the time of the support group, Ms Green continued to observe excessive noise from Mrs D'Souza's classroom.

Ms Green also gave evidence that she had at no time observed any indication of racial prejudice on Mr Geyer's behalf either against Mrs D'Souza or anyone else. She described Mr Geyer's treatment and attitude towards members of the teaching staff as always professional and fair.

I accept Ms Green as a person who gave her evidence honestly and she faced up to the difficulties of the slightly over-generous earlier report in a honest and appropriate manner.

9.1 Conclusion

The evidence of Mr Parker, Ms Lee and Ms Green support the proposition that there were aspects of Mrs D'Souza's teaching performance which might justify a principal's taking the sort of action that Mr Geyer took. Particularly the evidence of Ms Lee and Ms Green suggest that it was not unreasonable for Mr Geyer to back his own judgment and go apparently against the findings of the support group. I do not have to and I do not make any findings about the qualities of Mrs D'Souza's teaching. If the weight of the evidence had been such that Mr Geyer's actions were completely surprising and not supported by the observations of any other witness, that might have given some basis for an inference that he had some sort of prejudice or malicious attitude towards Mrs D'Souza which might give rise to a further inference that, at the bottom of such attitude, there were aspects which related to Mrs D'Souza's racial or national origins. The evidence is quite to the contrary. There is no direct evidence of racial prejudice on the part of Mr Geyer when taking disciplinary action against Mrs D'Souza. Evidence of a number of witnesses is that Mr Geyer never gave any cause for anyone to believe that he was racially prejudiced against Mrs D'Souza or anyone else.

In the circumstances, I find that the complaint so far as it relates to the allegations concerning the 1990 disciplinary proceedings is not substantiated.

10. UNPROFESSIONAL REBUKES

This is the sixth complaint as summarised by me on p. 4 of these reasons.

Mrs D'Souza said that, after the letter which is exhibit 3 from Mr Evans saying that disciplinary proceedings were closed, Mr Geyer continued his harassment. She said that Mr Geyer started following her and that, wherever she took her students, Mr Geyer rebuked her in front of the students. She said that it occurred in the classroom, in the playground and in various places. One incident related to Mr Geyer asking Mrs D'Souza why her children came late from the playground. Another incident occurred at cricket when Mr Geyer accused Mrs D'Souza of allowing her children to break branches. Another incident involved Mr Geyer saying to Ms Levell, then both the Vice Principal and Mrs D'Souza's Co-Ordinator, that Mrs D'Souza was not supervising her children. In all, Mrs D'Souza said the rebukes in front of children occurred four or five times. Another incident involved a statement that the carpet was dirty and that Mrs D'Souza was not supervising her children allowing them to bring dirty shoes into the classroom.

In the incident in which Mr Geyer was alleged to have complained to Ms Levell, Ms Levell was said by Mrs D'Souza to have said to Mrs D'Souza that she, Mrs D'Souza, should just hang in. This was interpreted as some kind of indication by Ms Levell that Mr Geyer's criticisms were unjustified.

Ms Levell's evidence does not seem to involve any canvassing of an incident where she apparently took Ms D'Souza's part against complaints by Mr Geyer made to her, Ms Levell. However, the thrust of Ms Levell's evidence suggests that such an incident was unlikely. Whatever Ms Levell said on that occasion, it is unlikely that it would have involved any implied criticism of Mr Geyer.

Much of Ms Levell's evidence related to her involvement in further disciplinary proceedings initiated against Mrs D'Souza during 1992 during which Ms Levell supported Mr Geyer's actions and contributed by her own observations which were critical of Mrs D'Souza.

Geyer

Mr Geyer's evidence involved forthright denials of any campaign of harassment against Mrs D'Souza and he stated that, whenever he had issues of criticism to raise with Mrs D'Souza, he did it quietly and in a non-embarrassing way.

Hope

Clifford Brian Hope ("Mr Hope") was the cleaner at Dingley since 1991. Mr Hope was born in Sri Lanka and is notably "non-Caucasian" in appearance and his manner of speaking reflects his upbringing in Sri Lanka. A letter from Mr Hope to the Principal of Dingley Primary School dated 12th November, 1992 is exhibit 28 in the proceedings. It formed part of the attachments to a letter mentioning further disciplinary proceedings dated 12th November, 1992. Exhibit 28 complains in quite strong terms about Mrs D'Souza's classroom stating that a new carpet has become impossible to clean because of dirty stains, food etc. There are also suggestions in Mr Hope's letter that he had observed mice droppings in the classroom.

Mr Hope's evidence covered a number of areas. He stated that he had always been very well treated by Mr Geyer. Despite Mrs D'Souza approaching him on one occasion and telling him that Mr Geyer was racist, Mr Hope had always had a very good relationship with Mr Geyer. He also gave evidence confirming the contents of his letter that Mrs D'Souza's classroom was very dirty and that the carpet was stained and that there were mice droppings in the classroom.

The fact that a particular person treats some members of a racial group well does not mean that bad treatment of other persons of the same racial group may not have racial undertones. However, school cleaner is not a high status occupation. Mr Hope was quite warm in his description of Mr Geyer's treatment of him. I obviously gained some assistance from his evidence on that point.

On the current issue which involves the alleged harassment by Mr Geyer in a number of incidents, Mr Hope's evidence suggests that Mr Geyer did have grounds for raising with Mrs D'Souza the question of cleanliness of the classroom. The fact that he did raise that issue in the circumstances of Mr Hope's letter of concern, tends to negate any inference that he was harassing Mrs D'Souza for racial reasons.

This aspect of the complaint involves a number of not particularly well specified incidents. It is based on Mrs D'Souza's perceptions of what Mr Geyer said and the manner in which he raised a number of issues. I have already indicated on a number of occasions that Mrs D'Souza's perceptions of particular incidents particularly those involving criticism of her are not particularly reliable even though she may be giving her evidence honestly.

In the circumstances, I find that this aspect of the complaint is not substantiated. I am not able to find that any such incidents of harassment occurred nor am I able to find that any criticism of Mrs D'Souza which took place was conducted in an unprofessional manner or was in any way influenced by racial attitudes held by Mr Geyer in respect of Mrs D'Souza.

11. APPLICATION FOR AST 1 CLASSIFICATION IN 1991

The AST 1 process is described briefly on page 4 of these reasons. Mrs D'Souza's evidence concerning this aspect of her complaint contains no direct evidence which could establish racially prejudiced behaviour on the part of Mr Geyer. If such conduct is to be proved, it must arise by inference.

It appears that Mrs D'Souza's case is that such inference can arise from the fact that she was not granted her AST 1 classification; that, at a discussion that took place after the AST 1 interviews, Mr Geyer could not remember the question about the single criterion on the basis of which Mrs D'Souza was refused the classification; and that Mrs D'Souza was told by Ms McMaster who was a member of the interview panel that no minutes were taken at the meeting. It appears from Mrs D'Souza's evidence, a decision of the panel was appealed to a Teaching Service Appeals Board and Mrs D'Souza's appeal was unsuccessful.

In my view, such factors are insufficient to give rise to any adverse inference against either the panel as a whole or Mr Geyer as Principal and Chairperson of the panel.

Exhibit 5 is the selection panel report from Mrs D'Souza as an AST 1 applicant. Mrs D'Souza was found to be eligible to apply. Out of nine criteria, she was found to succeed on all but "knowledge of current government policy in education".

It appears that Mrs D'Souza's suggestion that some wrong doing was involved in a failure to keep minutes is based on exhibit 51 which is an extract of the rules relating to the AST 1 process. In paragraph 1.6 of that document, the role of the secretary/executive officer is said to include "maintaining on the pro-formas provided a record of panel discussions during discussion and interview stages, with particular reference to those factors which have influenced the panel to not recommend an applicant".

It would seem to be the case, although it is not absolutely clear from the evidence, that exhibit 5 is the pro-forma referred to in exhibit 51. On the second page of that document, there are instructions that the panel was required to comment on each of the criteria which the applicant did not meet and to provide comment as to why, in the opinion of the panel, the criterion was not met. The instructions state that the comments should be succinct and to the point. The instructions request that the report be frank but that it presents any criticisms in a constructive manner. Under these instructions, it is stated:-

"In the opinion of the selection panel, criteria D was not met, because there was insufficient knowledge of key policies especially Frameworks and further evidence was not presented at the interview".

The record is not lengthy. However, the instruction is that it should be succinct. In my view, no technical breach of any regulations are made out on the evidence. In any event, a failure to keep full minutes has virtually no capacity to give rise to an inference that the panel, under the guidance of Mr Geyer, deprived Mrs D'Souza of her favourable classification on grounds of her ethnic origins.

Members of the Tribunal were Geraldine McKenzie, Janet McMaster, Dianne Maddison and Peter Geyer. They all signed exhibit 5.

McKenzie

Geraldine McKenzie ("Ms McKenzie") was, at the time she gave evidence, Assistant Principal at Dandenong North Primary School. She had twenty-four years experience as a primary teacher. At the time she served on the AST 1 panel, she was teaching at another school. She was the Office of School Administration representative on the panel. Being from outside Dingley Primary School, she was supposed to bring an extra flavour of impartiality to the process She said that she took this responsibility very seriously and she would have acted if any attempt had been made to influence the panel or to attempt to make the decision otherwise then by addressing the criteria. Ms McKenzie stated that Mr Geyer was very friendly and welcoming to Mrs D'Souza as he was to other persons. She said that there was no attempt by anyone to influence the decisions of the panel. She said that the panel discussed the matter after Mrs D'Souza left and that the panel came to a view that Mrs D'Souza has failed properly to address criterion D. She said that this was a consensus decision in which she concurred and that the reasons were correctly recorded on the second page of exhibit 5.

Maddison

Dianne Norma Maddison ("Ms Maddison") had been a school teacher for approximately twenty-six years. She had taught at Dingley Primary School since 1989. Apart from a year's leave in 1992, at the time of the hearing, she had taught continuously at that school since 1989.

Ms Maddison identified exhibit 72 as a list of four questions to be asked at the interview. She said that the panel had thought of the questions to ask previously and had written them down and decided that each member of the panel would ask a different question. Two were addressed to criterion B, one to criterion D and one to criterion I.

Ms Maddison said that the conduct of the interview with Mrs D'Souza was very professional and carried out in a calm manner. She said that the atmosphere was very congenial. Ms Maddison said that Mr Geyer had little to say at meetings of the panel and generally only acted as a member. He was very fair and left other people to do the talking and he did not instigate the talking. Ms Maddison said that she recollected the panel as being a very fair, impartial, quiet and well controlled meeting. She said that it was totally incorrect to suggest that Mr Geyer had imposed his will on the panel.

Ms Maddison also said that, during the time that she had known Mr Geyer since 1989, she had not seen any evidence nor heard any evidence that Mr Geyer was prejudiced against Mrs D'Souza because of her national origin or her race and that she had not seen any evidence whatsoever that Mr Geyer was a person who discriminated against persons on the basis of their race or national origin.

Exhibit 5 shows Ms Maddison as the Federated Teachers Union of Victoria representative on the panel.

McMaster

As indicated above, Ms McMaster did not give evidence. Exhibit 5 shows her as a member of the panel.

Geyer

Mr Geyer also gave evidence that the decision of the panel was a genuinely arrived-at consensus of views of the panel. He said that the decision was unanimous. Mr Geyer denied that he had in any way influenced the behaviour of the panel.

11.1 Conclusion

There is no direct evidence which suggests in any way that the decision of the AST 1 panel to refuse Mrs D'Souza's application was other than genuine. I accept the evidence of Ms McKenzie, Ms Maddison and Mr Geyer that the panel was conducted in a manner in which all participants tried their utmost to make the process completely fair. I accept the evidence that the conclusions of the panel represented the honest opinions of each of the members of the panel fairly arrived at by each member. I find that there was no improper influence brought by Mr Geyer on the decision of the other members of the panel.

I find this aspect of the complaint unsubstantiated.

12. PARENT/TEACHER INTERVIEWS OF JUNE, 1992

Mrs D'Souza's evidence-in-chief on this matter is set out in considerable detail at page 5 of these reasons. There was no dispute between the parties that Mrs D'Souza had some kind of problem with her eye which made night driving not recommended at the least. Exhibit 6, a medical report of Dr Julian Mazzetti refers to Mrs D'Souza having had several operations for cataract and retinal detachment which give rise to various problems dealing with bright lights and glare. Dr Mazzetti states that the circumstances render Mrs D'Souza unsafe and unable to drive at night.

Mrs D'Souza was unconvincing when cross-examined about her actions in scheduling the parent/teacher interviews so that they ran only until 6.30 p.m. It was pointed out to her and she appears broadly to have agreed that it would be dark by 6.30 p.m. in Melbourne on a June evening. She had no convincing answer why she would be able to drive home at 6.30 with safety and not be able to do the same thing at 9.30.

She was also unconvincing as to why other alternatives such as being driven home by another teacher or taking a taxi had not been used to ensure that parents were not prevented from engaging in the parent/teacher interview through the restricted available scheduling. In fact Mrs D'Souza did agree that there had been a discussion with Mr Geyer about alternative forms of transport being made available.

Mr Geyer's evidence is that the timing of the parent/teacher interviews were decided at a full staff meeting. The decision is that they would run from 9.30 a.m. until 9.30 p.m. Mr Geyer was not aware that Mrs D'Souza was absent from any such meeting and he had no recollection of any person raising Mrs D'Souza's eye problems at the meeting. Mr Geyer was quite sure that no conversation took place between him and Mrs D'Souza in which Mrs D'Souza informed him that, because of her problems with her vision, she would be scheduling her parent/teacher interviews only up to 6.30 p.m. and Mr Geyer said that that was alright.

Mr Geyer said that he did speak to Mrs D'Souza as a consequence of seeing her timetable and seeing the appointment notices that she had issued to the parents of her pupils none of which went beyond 6.30 p.m. Mr Geyer said that he spoke to Mrs D'Souza in her classroom and reminded her that it was a joint staff agreement that everyone would be back in the evening to make themselves available for the parents. On that occasion, Mrs D'Souza told Mr Geyer that she could not be there after 6.30 because she had difficulty driving at night. Mr Geyer said that he explained to her that he understood the difficulty but that alternatives could be made for her to be returned to her home after the meeting. He does not recall elaborating as to those alternative arrangements. Mr Geyer said that he may have displayed a mild degree of anger but that he did not barge into the classroom and he did not act rudely and it was not his style to do so with staff, parents or children. The incident took place during a time release period so that Mrs D'Souza was alone in the classroom at the time.

Mr Geyer said that, in response to the suggestion of alternative arrangements, Mrs D'Souza informed Mr Geyer quite clearly that she would not be there after 6.30. He stated that it was said quite clearly and quite emphatically.

Exhibit 76 are handwritten notes by Mr Geyer of a meeting which he said took place on 22nd June, 1992. The meeting occurred in the presence of Ms Levell, the Deputy Principal. Mr Geyer's evidence, assisted by his notes, was that he said about the parent/teacher interviews that he did not compel Mrs D'Souza to attend the parent/teacher evenings but it was important that she attempt to do so. Clarified in his oral evidence, this should be read as a reference to staying beyond 6.30 p.m . That meeting covered a number of other incidents. However, Mr Geyer said that Mrs D'Souza was rude and interjected in that meeting. He said that, with regard to the parent/teacher evenings, Mrs D'Souza said that Mr Geyer could not make her do anything.

Levell

Marion Ruth Levell ("Ms Levell") has been a qualified primary teacher for about thirty years. She came to Dingley Primary School in February, 1991. She came to the school as a Band Three teacher and was Area Co-Ordinator of Grades Five and Six. In 1992 she was Area Co-Ordinator for Grade Four.

Ms Levell said that she had conversations independent of Mr Geyer with Mrs D'Souza about the parent/teacher interviews. Mrs D'Souza and she discussed Mrs D'Souza's trouble driving at night and Mrs Levell said that she, Mrs Levell, tried to offer solutions which included a suggestion about getting a taxi or getting another staff member who lived opposite Mrs D'Souza to bring her to school in the morning and take her home that night after the interviews. Ms Levell said that these were not followed up.

Ms Levell said that she had been present at a number of meetings involving Mr Geyer and Mrs D'Souza during 1992. She could not specifically remember the meeting of 22nd June. However, she said, with regard to the tone of the meetings generally, that Mr Geyer would start saying what he felt he needed to say as Principal of the school to Mrs D'Souza and, as soon as Mr Geyer started talking, Mrs D'Souza would interject, interrupt and shout over him. Ms Levell said that it was very unpleasant and that she found it uncomfortable having to be there and listen to that sort of conversation where it seemed to be one way traffic.

In my view, the weight of the evidence is that Mrs D'Souza acted unreasonably concerning the parent/teacher interviews. I accept Mr Geyer's evidence that he did not, at any time, say to Mrs D'Souza that it was alright to schedule the meetings only until 6.30 p.m. It would seem very unlikely, in any event, that he would take such a view. I also accept Mr Geyer's evidence so far as it relates to the contents of the meetings which did take place. I accept Ms Levell's evidence as to her conversation with Mrs D'Souza. I also accept Ms Levell's evidence with its corroboration of the manner in which Mrs D'Souza conducted herself at the meeting of 22nd June, 1992.

At these meetings, Mr Geyer was acting legitimately within his role as Principal in response to Mrs D'Souza's actions. There is no evidence at all of any treatment or distinction influenced by considerations of race and I find the complaint with regard to this aspect of the matter not to be substantiated.

13. AST 1 ASSESSMENT PROCESS 1992

Mrs D'Souza applied in 1992 to be classified AST 1. She was again refused. Exhibit 7 is the report relating to a non recommendation. Exhibit 7 reveals five areas of skills constituting the selection criteria. Each of these were broken into a number of sub- areas. Of the eighteen sub-areas in all, Mrs D'Souza was held to have demonstrated the appropriate skills in only one sub area.

The exhibit also reveals that the members of the panel were Mr Geyer as Chairperson and Principal; Herta Schmid as a teacher representative, Ms Levell as a representative of the union and a Ms Dianne Forsythe as a representative from outside the school.

Mrs D'Souza's complaint with regard to her refusal was similar to that concerning the same process in 1991. That is, Mr Geyer had manipulated the process because of his racially based feelings against Mrs D'Souza to achieve her refusal.

However, in seeking to make out this case, Mrs D'Souza concentrated on a number of technical or procedural irregularities.

Mrs D'Souza's first complaint as to procedure was that no election took place to elect the teacher representative on the AST panel.

Herta Schmid

Herta Schmid had been a Primary School teacher since 1972. She worked at Dingley Primary School only since the beginning of 1992. She gave evidence that she nominated for teacher representative and exhibit 52 is her nomination. Mrs D'Souza did not contest that nominations were called. She contested that there was any calling of an election. Ms Schmid could not remember whether or not an election took place. However, an election would not be necessary if there was only one nomination.

Levell

Ms Levell gave evidence that she also nominated as a teacher representative. She is shown on the document as a union representative. Exhibit 88 is her nomination.

These issues do not appear to have been explored in the evidence. It may be that the nomination for union representative was made on a teacher representative form. Ms Levell was not asked about whether or not an election was held.

Geyer

By reference to exhibit 14, a record of the minutes of a staff meeting, Mr Geyer was able to confirm that nominations for AST panels were called on the 29th June, 1992. Mr Geyer went overseas on 6th July.

It seems that there is no evidence definitely saying whether or not an election took place. It is uncontested that nominations were called. I accept the evidence that Ms Levell and Ms Schmid were correctly nominated for one or other position. I think it is most likely that one was elected unopposed to the teachers' representative position and the other was elected unopposed to the union representative position.

On this point, I am unable to make a finding that any procedural irregularity occurred. Certainly there is no evidence on this point that Mr Geyer manipulated the formation of the panels.

13.1 Ms Levell's letters

Mrs D'Souza raised an issue of a procedural irregularity in that it appeared from letters written by Ms Levell that applications had been opened without all members of the panel being present. The letters in question are exhibits 12 and 13 which are letters signed by Ms Levell as acting Chairperson AST 1 Committee dated 26th August and 28th August, 1992. The first advised Mrs D'Souza that her application had been received and she would be advised in due course of her interview time. The second advised that her interview was scheduled for 4.00 p.m. on Tuesday, September 8th.

It appeared from the letters that Mr Geyer was not present at the meetings. Since he was not due back from long service holiday leave until 30th August, 1992 there is a clear implication that he was not present when the applications were opened.

However, all members of the Committee said that Mr Geyer was present at all meetings of the Committee and all stages of the process Mr Geyer and Ms Levell explained that Mr Geyer had come back to the school prior to the expiration of his leave especially to attend the AST 1, 2 and 3 meetings. However, because he was not back fully from his leave, it was explained that Ms Levell wrote the letters. Ms Levell accepted that it would have been better for her to sign the letters on behalf of the panel rather than as acting Chairperson of the panel.

There is no evidence which contradicts this explanation. The explanation is inherently credible. I accept the evidence of Ms Levell, Mr Geyer and the other members of the panel. I find that there was no procedural irregularity.

If Mr Geyer had not been present at all meetings, this would perhaps suggest that he was exercising less rather than too much influence on the panel. However, in the light of my findings on this point, this consideration need not be pursued.

13.2 The Time Lines

Exhibit 11 was a set of advice and instructions for the AST 1 selection process In paragraph 2 it set out the list of time lines applying to the process

Exhibit 8 is a letter from the Registrar of the Appeals Board to whom Mrs D'Souza's appeal against her non-recommendation was taken. That letter was in response to Mrs D'Souza's concern that the regulations had not been complied with. Mrs D'Souza complained that the document was not opened in the presence of all persons on the panel. Exhibit 8 states that the letter was opened in the presence of Mr Geyer on 29th August, 1992. This date was one day outside the time required for applicants to be advised of their eligibility. It was a day after the date of exhibit 13, the second letter from Ms Levell to Mrs D'Souza. It was a Saturday. It was agreed by all witnesses that no meeting was held on a Saturday.

There was also some confusion created by the fact that Mr Geyer could not recall any meeting after 24th August when the applications were first opened.

This confusion with the dates is unfortunate because it has contributed to Mrs D'Souza's suspicions about the appropriateness of the process. However, it seems that any reference to 29th August, 1992 was an error. Whether there were one or two meetings, it is likely that the last of the meetings prior to the interview took place on 28th August, 1992 or earlier because of the date carried by Ms Levell's letter to Mrs D'Souza dated exhibit 13.

Even if the meeting was heard a couple of days late, it is unlikely to invalidate the process and, more particularly, it does not provide any indication that any of the participants approached their task influenced adversely by questions of race. If Mr Geyer had engaged in misconduct relevant to the Act, it is illogical that he would seek to hide same by mis-stating the dates of meetings and by failing to remember whether one or two meetings took place.

Errors were made with regard to the dates of meetings. I am satisfied that Ms Levell and Mr Geyer were doing their best to work out from the documentation when and how many meetings took place. This particular aspect does not support any finding that there was a contravention of the Act.

13.3 The Recommendation for Improvement

Mrs D'Souza felt particularly aggrieved that, despite the fact that the only sub criterion where she was successful was classroom management strategies, the report of the Selection Committee, exhibit 7 mentioned classroom management strategies as one of the areas in which she needed to undertake professional development. There is a degree of inconsistency in this result. Ms Levell was questioned about this inconsistency and her explanation was not particularly convincing. She sought to draw distinctions between management and control. I was not convinced by the explanation.

On the other hand, I do not see that the inconsistency gives rise to any inference of impropriety or racial prejudice on the part of the members of the panel. The explanation is likely to be much more common place and haphazard. Classroom management skills was the third of the eighteen sub criteria dealt with. It may have been that the panel was slightly easier in their marking on that particular sub criteria. By the time they got to the end of the eighteen sub criteria, they may have had a better overall view of Mrs D'Souza's abilities and performance in terms of the AST process With that overall view, they may have then put their minds to things that needed some attention. Classroom management strategies may have been mentioned from this overview without anyone recognising that that was the one skill at which Mrs D'Souza was found to have demonstrated sufficient ability. I do not find that this aspect gives rise to any suggestion of racial considerations having infiltrated into the AST process

13.4 General

Each of the members of the panel gave evidence and said that Mr Geyer did not seek to influence the process and that each of the members of the panel were in agreement with the report. Ms Forsythe, the independent member of the Tribunal with no prior contact with the school gave evidence to this effect as well as the three members from the school. Mrs D'Souza also based her case on the fact that she had failed seventeen of the sub criteria on this occasion when, one year earlier, she has almost made it missing out on only one criterion.

However, evidence from a number of witnesses was to the effect that the process was much stricter in the 1992 year with requirements that applicants actually demonstrate an ability to apply skills and not merely be in a position to recite the scholarly learning in various fields. I accept this evidence and this explains the significant worsening of Mrs D'Souza's overall result in the process in the second year.

Nothing in the evidence concerning the AST 1 selection process in the 1992 year constitutes evidence of racial discrimination on Mr Geyer's part. I find that there was no contravention of the Act in respect of this aspect of Mrs D'Souza's case.

14. FURTHER DISCIPLINARY PROCESSES IN 1992

I have set out at p. 5 the summary of Mrs D'Souza's evidence on these issues. As I mentioned there, Mrs D'Souza expressed the view that Mr Geyer's actions were partially in retribution for Mrs D'Souza's own complaint which was contained in a letter to Mr John Evans of the Personnel Branch dated 22nd September, 1992. While that letter canvassed a number of other issues which I have already considered here such as the AST 1 one processes and the incident surrounding the parent/teacher interviews, the letter was sparked by an incident that took place on 18th September, 1992.

With regard to that incident, Mrs D'Souza said that she was told in a note by Ms Levell that Mr Geyer wanted to speak to her, Mrs D'Souza, in the presence of Ms Levell. Mrs D'Souza said to Ms Levell that she wanted a union representative to come to that meeting. Ms Levell, according to Mrs D'Souza, said that that was fair enough but that Mrs D'Souza should inform Mr Geyer that that was happening.

Mrs D'Souza said that she went to see Mr Geyer to tell him this fact. She said that Mr Geyer said that she was not allowed to have a union representative present. When he continued to deny her permission, Mrs D'Souza said that she told Mr Geyer that she was not going to attend the meeting that she had set. Mrs D'Souza said that Mr Geyer then said, very well, he would complain to the general manager. She said that she said "okay, you can make another such complaint". She said that Mr Geyer then said to her "Get out. At this moment get out".

Mrs D'Souza said that she went outside and spoke to a receptionist and a clerk, a Ms Sue Chanter and Ms Sue Bell and that she, Mrs D'Souza, enquired of Ms Chanter whether Ms Chanter had heard Mr Geyer ordering her, Mrs D'Souza, out of his office. Ms Chanter indicated that she had.

This aspect of Mrs D'Souza's complaint seems to require that I draw an inference from the lodging of the disciplinary complaint and from what Mrs D'Souza describes as Mr Geyer's "atrocious behaviour towards me" (in exhibit 22) that each of these actions on Mr Geyer's part were the result of some racial prejudice on his part against Mrs D'Souza. In order to determine whether any such inference is capable of arising, I need to consider the merits of the incidents.

Exhibit 25, Mr Geyer's letter setting out his complaints against Mrs D'Souza dated 12th November, 1992 contains both his detailed complaints against Mrs D'Souza and a detailed response to her letter of complaint against him. For the moment it suffices to say that the letter is detailed and discusses a background going back to when Mrs D'Souza was first transferred to the school. It is supported by letters from other personnel at the school including Ms Levell, Ms Sally Davies, Mr Hope (whose evidence has already been discussed in these reasons), a letter from Herta Schmid and Ms Cathy Newton which are the exhibits which follow exhibit 25. I will commence by discussing two matters referred to in exhibit 25 in more detail. The first concerns the events of 18th September mentioned above and the second involves a complaint that Mrs D'Souza had failed to complete in full the details of her work program for the week commencing October 23rd by the Monday morning of that week.

14.1 18th September, 1992

I have set out Mrs D'Souza's version of these events in some detail above.

Mr Geyer was assisted in his evidence by exhibit 77 which is a handwritten note he made on September 18th. In evidence, he said that Mrs D'Souza attended at before 10.15 a.m. and launched into a tirade. Mr Geyer said that Mrs D'Souza said that he, Mr Geyer, could not make her, Mrs D'Souza, come to his office; that he had no authority to do so; and that she did not have to come to his office unless she had a union person with her; and that Mr Geyer could not discuss anything with her without the presence of a union person.

Mr Geyer said that he explained that that was not necessary and that there was no requirement on his part to have anybody present. He did not have to have a union person present at every conference he had in the school.

Mr Geyer said that Mrs D'Souza then shouted at him and waved her finger in his face. She shouted that she must have a union person present and that Mr Geyer could not make her come to his office. Mr Geyer said that he had never had a person in all his teaching career as rude and as loud to him as Mrs D'Souza was on that occasion. Mr Geyer said that he was internally angry but that he did not shout at Mrs D'Souza. He said that he found it necessary to tell her to leave the office. He said that he said "would you please leave my office immediately".

There is some confusion as to what happened subsequently. Exhibit 66, a letter from Mrs D'Souza to the Equal Opportunity Board, Victoria has attached to it some notes that were produced on that day. One was a letter from Ms Levell to Mrs D'Souza suggesting that Mr Geyer wanted both of them at his office at 10.15 a.m. The second is a letter from Mr Geyer to Mrs D'Souza stating that Mr Geyer wanted to see her at 10.15 that morning. Mr Geyer stated that after Mrs D'Souza left he arranged for Mr Carter the President (at the school) of the branch of the Victorian Teachers' Union to be present for the meeting between him and Mrs D'Souza. At first he thought that he had sent this note after Mrs D'Souza left. After he had seen a copy of the note he thought the note had been sent before Mrs D'Souza had visited his office.

It seems common ground that Mrs D'Souza only visited on the one occasion and that she did not visit at 10.15 a.m.

A third document attached to exhibit 66 is a letter from Mr Carter (undated) which stated that on October 18th, 1992 (note the incident occurred on 18th September 1992) Mr Carter was requested to be present at a meeting in the school principal's office at 10.20 a.m. as the FTUV union representative. Mr Carter's note states that Mrs D'Souza did not attend the meeting.

I think the most likely chain of events is the following. Mrs D'Souza attended and left believing that Mr Geyer said that she could not have a union representative present. Mr Geyer who had stated fairly firmly that he did not have to have a union representative present felt it was appropriate on his part to take a cautious attitude and give in to Mrs D'Souza's request in this regard and therefore arranged for Mr Carter to attend at the time of the scheduled meeting. Mr Carter may be right in saying that he was requested to attend at 10.20 a.m. (even though he got the month wrong) and that the time for the meeting may have elapsed by the time the first discussion was completed and Mr Carter was contacted and was able to get there. I think Mr Geyer probably issued his note to Mrs D'Souza after Mrs D'Souza attended the first time. However, possibly unintentionally, he did not mention the fact that Mr Carter would be present. Mrs D'Souza when she got this note, still believing that no union representative would be present stood on her earlier position and did not attend.

As to what happened during the period of time Mrs D'Souza was in Mr Geyer's room prior to 10.15 a.m. on 18th September, 1992, I received no account of same other than the two versions of Mrs D'Souza and Mr Geyer respectively, which I have set out above. On occasion, during the hearing, Mrs D'Souza did show a tendency to raise her voice to a level that could probably be described as shouting. This tended to occur during moments of tension and Mrs D'Souza was able to be calmed down by me. I formed the opinion that such shouting had occurred without any real intention on Mrs D'Souza's part and without her being fully aware of what had happened.

Piecing together the two versions of the event, I am of the opinion that Mrs D'Souza went to Mr Geyer's room with what she believed was a reasonable request but that, probably unintentionally, she did raise her voice and present the request in a provocative manner. It seems clear from the evidence that Mr Geyer was upset by the way in which Mrs D'Souza presented herself and her request and he did request Mrs D'Souza to leave the room. Whether he remained as outwardly controlled as he said in evidence is probably difficult for him to know from this perspective in time and I am certainly unable to determine that issue.

It seems clear though, particularly from Mr Geyer's actions after Mrs D'Souza left that Mr Geyer was not acting vindictively. It is also understandable that Mr Geyer's continuing view of the incident was that Mrs D'Souza had acted wrongly in the way she presented her request and for her subsequent failure to attend. Mrs D'Souza's subsequent failure to attend is perhaps more understandable if viewed from her eyes, particularly if she was not aware as I consider to be likely that Mr Carter was to be present.

However, there is no suggestion from the view of the events that I have taken that Mr Geyer was acting in a racially prejudiced manner. Mrs D'Souza's complaint on this point is therefore unsubstantiated.

14.2 The Failure to Complete the Workbook

This is a subject on which Mrs D'Souza could justifiably feel that she had been criticised wrongly.

In exhibit 25, Mr Geyer's letter to the Personnel Branch, he stated that clearly articulated school policy requires work programs to be completed with full details and in advance by the Monday morning of each week. The letter went on to state that reference to the program presented by Mrs D'Souza for the week ending October 23rd indicated a failure to comply with this policy because when the document was presented on the Tuesday of that week, it was incomplete and inadequate. Mr Geyer had inspected the book on that occasion.

Mrs D'Souza said in her own defence which is recorded in exhibit 24, her letter to Mr Geyer dated 28th October, 1992, that it had been agreed at an area meeting (that is of the Grades Three and Four teachers) that the work program would be signed by the area co-ordinator every Friday despite the requirement in the manual that it be done on the Monday. Mrs D'Souza said that the change was agreed upon to avoid inconvenience to teachers at the commencement of the week. Mrs D'Souza said that she had always provided her work program as agreed at that area meeting.

As at 13th February, 1992, Ms Levell was the area co-ordinator of those grades.

Mr Geyer referred his criticisms and Mrs D'Souza's responses to Ms Levell for her comments. Ms Levell cut the ground from Mrs D'Souza's defence. She said that the decision for Fridays was made on 2nd February, 1992 when her area verbally agreed to have the following week's work recorded. This can be seen in her letter dated 9th November, 1992 which is exhibit 26.

In her oral evidence, when questioned by Mrs D'Souza, Ms Levell continued to maintain that her position as appeared from exhibit 26 was correct. However, when shown a document which became exhibit 89 being minutes of the 3/4 area meeting dated 13th February, 1992 taken in her own handwriting, Ms Levell agreed that it was consistent with those minutes and with what she could otherwise recall that the area had agreed to ease the requirements of the manual and allow the workbook to be completed by the Friday of the week to which it applied. Ms Levell agreed that what she had written on this subject in exhibit 26 had been wrong.

In exhibit 26, Ms Levell had written "work program - decision for Fridays made 2 February, 1992 when my area verbally agreed to have the following week's work recorded".

As pointed out to Ms Levell, the actual meeting occurred on 13th February. It also appears to have been common ground among the parties that 2nd February, 1992 was a Sunday. The reference to a specific date in exhibit 26 tends to suggest that the author had checked some documentation, or, alternatively, had a very good recollection of the decision which was made. Ms Levell was unable to give any explanation why she had got both the effect of the decision and the date wrong nor point to any other document which might have explained her reference in exhibit 26.

A number of things flow from this evidence. Firstly, while I have indicated already in these reasons that much of Mrs D'Souza's concern that she was being unjustly treated was due to different perceptions of various events, on this occasion, Mrs D'Souza could feel justified in her concern.

Secondly, it indicates a degree of sloppiness on the part of Ms Levell. While there appears to me to be no basis for suggesting any conspiracy between Ms Levell and Mr Geyer and while I do not believe that Ms Levell was deliberately telling lies either in exhibit 26 or in her oral evidence, it does appear that her recollection of the facts may have been affected by an unconscious assumption that her Principal was right and Mrs D'Souza was wrong. While I do not believe that Ms Levell's evidence was generally unreliable, this particular event has caused me to be more hesitant about placing reliance on her evidence and where I have done so for the purpose of these reasons, I have only done so after careful consideration. Generally I have been more confident where her evidence has been supported by other credible witnesses.

Most significantly, as far as the cause of action is concerned, the incident does not indicate any contravention of the Act by Mr Geyer. To the extent that he questioned Mrs D'Souza's workbook, he was acting in accordance with the manual. To the extent that he disbelieved Mrs D'Souza's explanation, he was acting on the basis of the class Co-Ordinator at the time who had become the Deputy Principal. In those circumstances, he cannot be said to have acted unreasonably. It follows that the incident does not constitute any evidence that there was prejudice on his part or that he acted against Mrs D'Souza because of any such racial prejudice.

14.3 Other Aspects of the Disciplinary Action

As well as exhibits 26 to 31, further annexures to exhibit 25 are contained in the bundle which constitutes exhibit 97. Exhibit 97 is a series of letters from parents. Although I did not hear evidence from any of those authors, I accept that they were letters genuinely received by Mr Geyer which he was entitled to rely upon in having renewed concerns about Mrs D'Souza's teaching. Evidence was given by the author of exhibit 27, Ms Sally Anne Davies, by the author of exhibit 29, Mary Patricia Davies, the author of exhibit 30, Ms Herta Schmid, and by the author of exhibit 31, Catherine Joy Newton, all of whom addressed, in the exhibits and in their oral evidence, concerns about Mrs D'Souza's ability to control and manage the children under her responsibility. Each of these witnesses impressed me and I accepted their concerns as genuine and their observations honestly related. I accept that Mr Geyer was aware of the incidents related by these teachers and that his renewed concerns about Mrs D'Souza's ability to maintain proper order and discipline were genuine and not motivated by any adverse racial feelings held with regard to Mrs D'Souza.

I have already mentioned the evidence of Mr Hope, a letter of which he was the author dated 12th November, 1992, is exhibit 28. His evidence went to problems with the cleanliness of the classroom.

Mr Geyer's language in exhibit 25 is temperate and, in the last paragraph, he expresses his reluctance and his genuine sympathy for Mrs D'Souza.

In all the circumstances, there is no evidence to suggest that Mr Geyer's actions in this matter were other than the genuine actions of a concerned Principal taken fairly reluctantly. It is quite possible that his decision finally to take action was stimulated by Mrs D'Souza's somewhat uncontrolled statements in interviews with him, certain of which I have discussed in some length above in connection with the meeting of 18th September, 1992.

In the circumstances, I find this aspect of the complaint unsubstantiated.

15. TEACHERS IN EXCESS

It was common ground that government policy changes required that Dingley Primary School identify three of its teaching establishment to be declared in excess and that the criterion to do this was who were the three least effective teachers.

Mrs D'Souza did raise, in cross-examination, issues about teachers coming to the school at the beginning of 1993 who were not teaching in 1992. However, there seems to be no reason to doubt explanations given that these teachers were already to be considered part of the establishment because they were resuming teaching from some form of leave.

Mrs D'Souza had no knowledge of the process by which the decision was made to declare teachers in excess That is, she was not at the meeting of the Administration Committee at which the matter was discussed. Accordingly, her case has to be based simply on the drawing of an inference from the decision and any other evidence going to Mr Geyer's attitude to her.

Mr Geyer's evidence on the issue was that, as was his practice generally, the decision was referred to the Administration Committee. He did this despite the fact that the decision was formally his and he could have made it on his own. He gave evidence that, at the relevant meeting of the Administration Committee, each of the participants was asked to nominate the three teachers that they considered to be the least effective. His evidence was that he spoke last. Each person at the meeting nominated the same three teachers. They were Mr Carter, Ms Jenny Good and Mrs D'Souza. He said that he was not surprised that the decision was anonymous in that there was a clear demarcation between those three teachers on the one hand and the rest of the teaching staff.

He gave evidence that he did not attempt in any way to influence the other members of the Administration Committee and that each of the members reached the decision freely.

Other members of the Administration Committee gave evidence. These included Ms Lynette Lee, Ms Newton, Ms Levell and the two Ms Davies. Each of these persons gave evidence broadly in accordance with what Mr Geyer had said and each gave credible reasons why each of them named the three persons referred to above including Mrs D'Souza.

I accept that the evidence of these five persons was honestly given and that the conclusions that they came to in the Administration Committee were genuine and honest assessments of the teaching staff including the three people that they named.

I find that the process in which the three teachers were named in excess was a completely satisfactory and appropriate procedure. I find that Mr Geyer did not attempt to influence or place pressure on any of the other participants. I find that there is no evidence to suggest that Mr Geyer's own conclusions expressed in that Committee was anything other than a genuine assessment unaffected in any way by any consideration of Mrs D'Souza's racial and ethnic background.

I find, on this point, that the complaint is unsubstantiated.

16. BEING PLACED ON RELIEVING DUTIES

I do not understand Mrs D'Souza's case to be that anyone other than Mr Geyer treated her in a way that disadvantaged her because of her racial origins. Being placed on the relieving staff appears to have been the natural result of having been named as one of the teachers in excess, that is, one of the three least effective teachers at the school. Since I found the complaint unsubstantiated on that ground, then it must fail on this ground as well.

17. THE TRANSFER FORM - 7TH SEPTEMBER, 1992

I have outlined above Mrs D'Souza's complaints with regard to this aspect of the matter. The only direct evidence is the form itself. Mrs D'Souza had written on exhibit 32 some six specific areas to which she would like to be transferred. Under the heading summary of reasons for transfer she had written: "in case I am declared in excess at the present school, I prefer to be relocated closer to home at any of the above areas". This was signed by her and dated 7th September, 1992.

In Section B of the document which was to be completed by the head of school Mr Geyer had written:-

"It would be in Mrs D'Souza's best interests and in the best interest of Dingley Primary School if she was relocated at another school in 1993".

That is also dated 7th September, 1992.

It is easy to understand in the light of what had passed between Principal and teacher at that stage that a Principal might come to the conclusion that it would be better off for everybody for the teacher to make a fresh start at another school. Since the conflict exacerbated rather than diminished over the subsequent months, that was certainly not an unreasonable position for Mr Geyer to take.

I would only be able to draw an inference that Mr Geyer had made his comments as a result of taking into account Mrs D'Souza's racial and ethnic background if more direct evidence relating to a number of other incidents had independently shown Mr Geyer to have brought those sorts of considerations to his decision making concerning Mrs D'Souza.

As the above discussion shows, I have found that there is no evidence which allows me to come to the conclusion that Mr Geyer was affected in any way by racial considerations when making decisions concerning Mrs D'Souza.

In the absence of any other direct evidence establishing such factors in the present instance, I make the finding that the complaint in this aspect is unsubstantiated.

18. FIONA AND THE MEDICAL CERTIFICATE

I have set out the thrust of Mrs D'Souza's evidence on this subject at page 7 of these reasons. Essentially, I understand Mrs D'Souza's case to be that Mr Geyer's instructing the father of Fiona not to be provide a medical certificate is evidence which tends to suggest that Mr Geyer put Fiona's parents up to the complaint in the first place. Mrs D'Souza was fortified in her conclusion in this regard by the fact that there was an inconsistency between the written complaint which stated that Fiona suffered an eye twitch because of the stress that that child suffered from having to be in Mrs D'Souza's class and a subsequent statement by Fiona's mother which suggested that both Fiona and her brother had eye twitches which were unconnected with any stress. As I understand the evidence, Fiona's brother had never been in Mrs D'Souza's class and was not in her class at the relevant time.

At p. 7 of exhibit 2, Mr Geyer's first complaints procedure letter to the Personnel Branch dated 15th May, 1990, Mr Geyer stated one aspect of his view of the matter when he said that Mrs D'Souza, without Mr Geyer's knowledge or consent, had written to a parent and asked for a medical certificate to clarify a matter over which Mrs D'Souza had a disagreement with the parent.

It is clear from the context that one of the attachments to the main letter constituting exhibit 2, namely, a letter dated 8th March, 1990 of Milton and Georgina Everett to Mr Geyer complaining about Mrs D'Souza is a letter from Fiona's parents and that the Fiona referred to in the letter is the Fiona referred to above. The letter states that Fiona had developed a nervous eye twitch when school time nears or when her teacher's name was mentioned and had started to bite her nails.

Neither Mr or Mrs Everett gave evidence. Therefore, I cannot get any great assistance from nor place a great deal of weight on their correspondence. However, the letter discusses a number of issues and seems both reasoned and considered and I would be surprised that such a letter was the product of someone being manipulated by a Principal. Rather, the letter suggests itself to be the product of concerned parents whose child has been having some difficulty, rightly or wrongly, in the classroom situation. For example, the letter shows itself to be a considered one that mentions difficulties associated with Mrs D'Souza's accent but goes on to say that this is not the real problem that the child experiences which rather arises through an alleged lack of organisation of Mrs D'Souza's children resulting in a failure to establish a relaxed rapport between teacher on one hand and parents and pupils on the other. Such analysis suggests not only concern but also discernment.

In his evidence, Mr Geyer said that he received a complaint from Mr and Mrs Everett. He said that they were extremely concerned about their child and the way in which she was instructed in Mrs D'Souza's class. He said that he had a discussion with Mrs D'Souza about this complaint and others in the presence of Mr Parker. He indicated to Mrs D'Souza that she was not to communicate in writing direct to parents without the prior notification and approval of the Principal. Mr Geyer said that this was a rule that existed in all primary schools and that teachers are required (as much for their own protection as for the information of the Principal) to communicate via the Principal. Any written communications between teacher and parent must be cleared by and passed through the Principal or his delegate.

Mr Geyer said that he communicated this rule to Mrs D'Souza because he had been contacted by Mr and Mrs Everett in an angry state. He said that Fiona had had some problem or perceived difficulty with her eye. Mrs D'Souza had demanded from the parents, according to Mr Everett, a doctor's certificate pertaining to that eye condition. Mr and Mrs Everett had suggested that they were very unhappy about receiving such a request.

Mr Geyer said that Mrs D'Souza had defended herself and said that it was quite reasonable for her to request a medical certificate as the Everetts had suggested that their child had developed some sort of eye problem as a consequence of unhappiness and stress within her class. She said that she needed the medical certificate to show that there had been an actual physical problem with the eye and that it was not a consequence of stress experienced by the child. Mr Geyer said that he could not recall Mrs D'Souza saying anything at that stage about Fiona's brother having developed a similar problem.

It is difficult for me without having heard from either Mr or Mrs Everett to conclude whether or not there had been any inconsistency in their complaints. I do not draw any adverse inference against either the respondents or Mrs D'Souza concerning any failure to call Mr or Mrs Everett. One might think that the Director of Education might have every desire not to involve parents of pupils in litigation like that before me. There is no real reason why Mrs D'Souza needed to call on either Mr or Mrs Everett.

I do not make any finding that Mr and Mrs Everett had shown any inconsistency. There may well have been some form of physical eye problem which was accompanied by or even accentuated by some kind of stress related twitch. Mr and Mrs Everett may have been wrong in attributing any twitch to stress that the child may well have felt about being in Mrs D'Souza's class.

Not only are there a number of innocent explanations, but I am also hesitant to find inconsistencies in the conduct of Mr and Mrs Everett because of my previously expressed concerns about the accuracy of Mrs D'Souza's perceptions of some situations especially where she is subject to some criticism. In any event, none of this constitutes any direct evidence that Mr Geyer solicited false complaints from Mr and Mrs Everett because of negative racial attitudes he held towards Mrs D'Souza which is the crux of this aspect of the complaint. I find this, the fourteenth and final aspect of the complaint, unsubstantiated.

19. OTHER EVIDENCE

There were other various types of evidence which I have taken into account despite the fact that it has not been referred to above. This has usually been because such evidence has not related to particular incidents.

Among the evidence of this nature there is various written evidence submitted by Mrs D'Souza without calling the authors of the documents in question. Included in this material are the collection of Principal's reports which constitute exhibit 34; a number of references from past educational institutions of which Mrs D'Souza has worked which constitute exhibit 62; and exhibit 60 which was the response of a number of parents to a survey Mrs D'Souza conducted during 1990 of parents of children in her class. Included in exhibit 60 was a very favourable comment by a parent which was overhead by a number of teachers who signed the document in question. These teachers included Ms Maddison and Ms Green, both of whom gave evidence.

Exhibit 60 also included notes to Mrs D'Souza of a Ms Dixon who took Mrs D'Souza's class over a period of time. The parents' responses to the survey were generally favourable.

This evidence tends to establish that not all parents nor all of Mrs D'Souza's colleagues during the whole of her teaching career found fault with her and that many found favour.

I have taken this evidence into account in considering whether Mr Geyer's actions in respect of Mrs D'Souza discussed in its various aspects above involved bad faith on his part or was affected in any way by distinctions he was making on the basis of racial or ethnic origins. This evidence to which I have referred was not such, at the end of the day, taken with the evidence of witnesses and participants in the various incidents which I have discussed, as to cause me to find such bad faith or distinctions of a racial nature.

It is relevant to point out that I am of course considering in this matter and am required to decide whether a breach of the Act took place. At no stage have I directed myself to making any definitive conclusion as to whether Mrs D'Souza was either a good or a bad teacher or whether any of the complaints made by Mr Geyer regarding her or any of the criticisms in evidence of her teaching were, at the end of the day, correct. It is not my function to address those issues.

I have mentioned that a number of the teachers and other witnesses who gave evidence concerning specific incidents of their observations associated with same gave evidence generally as to their perceptions of Mr Geyer in terms of whether he had ever exhibited racial attitudes or behaviour. I addressed the evidence of Mr Hope, the school cleaner in some detail in this regard.

Further, the evidence on this subject was given by a witness who had no evidence to give with regard to any specific incidents at the school. This witness was Elvira Frances Paterson ("Ms Paterson"). Ms Paterson was a primary school teacher and had been so for about twenty five years. She had been born in South India and qualified in India. She came to Australia in 1970 and had met Mr Geyer in 1979 when she taught with him at Northvale Primary School. As well as the two persons teaching together, their respective children also attended Northvale Primary School and were friends one with another. Ms Paterson said that the close friendship and relationship continued between her daughter and Mr Geyer's daughter up to the time of giving evidence. Ms Paterson said that she also had a continuing friendship with both Mr Geyer and herself and she had contacted Mr Geyer on educational and professional matters on a professional and social basis from time to time. She would consult him with regard to big decisions in her life such as whether to apply for or to accept transfers.

Ms Paterson stated that while she worked with Mr Geyer, the relationship was both professional and social and this applied also to another teacher, Bev Nick, who was also from Southern India.

Ms Paterson said that she has experienced racial prejudice in the past and would recognise it and that Mr Geyer had never shown any racial prejudice. Ms Paterson was not cross-examined by Mrs D'Souza.

I have mentioned in the context of Mr Hope's evidence that evidence that a person does not exhibit racial prejudice with regard to a particular person of a certain ethnic background does not prevent a person having exhibited such prejudice to another person of a similar ethnic background. Sometimes, accompanying collateral factors giving rise to conflict cause a person to exhibit racially prejudice conduct which may not have been triggered in the earlier situation because such collateral stress or conflict was not present.

However, Ms Paterson's evidence was forthright; covered a broad period of time in Mr Geyer's life and covered incidents where people were teaching together in schools with all the stress associated with that occupation. While I have found greatest assistance from the evidence which related directly to the events which are the subject of the complaint, I have taken into account and received assistance from Ms Paterson's evidence.

20. CONCLUSION

I have dealt with Mrs D'Souza's complaint by dealing with fourteen discrete aspects of that complaint. I have mentioned that there is some artificiality in breaking the complaint up into a specific number of events. It is a very significant part of Mrs D'Souza's contentions that Mr Geyer's racially affected attitudes exhibited themselves from the point of first contact (and perhaps before then) until the last point of contact and that, even then, the damage that she was suffering from these attitudes continued to affect her in her subsequent teaching career. It is consistent with and to some extent follows from the findings I have made with regard to the fourteen discrete aspects of the complaint which have been found to be unsubstantiated that I find the complaint as a whole to be unsubstantiated. Pursuant to s. 25Z(1)(a), I dismiss the complaint the subject of the inquiry.

Dated this 25th day of March 1996

Stephen Keim

Inquiry Commissioner