McLachlan v St Vincent's Hospital [1998] HREOCA 4 (22 January 1998)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No. H97/145

Between:

Robyn McLachlan

Complainant

And:

St Vincent's Hospital (Melbourne) Ltd

Respondent

REASONS FOR DECISION

of

Michael Dodson

Inquiry Commissioner

Location of Hearing: Melbourne

Hearing Dates: 22, 23, 24, 29 September 1997

Date of Decision: 22 January 1998

Appearances: Ms Melinda Richards of counsel, instructed by Dunhill Madden Butler, Solicitors for the complainant.

Mr Brian Lacy of counsel instructed by Molomby & Molomby, Solicitors appeared for the respondent.

1. INTRODUCTION

On 28 November 1995, Ms Robyn McLachlan lodged a complaint under the Sex Discrimination Act 1984 (Cth) (`the Act') alleging that the failure of St Vincent's Hospital (Melbourne) Ltd ('St. Vincent's') to appoint her as the team leader of the Immunology and Proteins group constituted discrimination on the grounds of sex. She alleged that the procedures used by St Vincent's Hospital to select the team leaders of the various groups within the pathology department had the effect of disadvantaging her because of her sex. Her complaint was lodged with the Victorian Equal Opportunity Commission (`VEOC'), acting as agent for the Human Rights and Equal Opportunity Commission (`HREOC') under s.16 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). VEOC inquired into and endeavoured to settle the complaint, without success.

On 18 April 1997, the Acting Sex Discrimination Commissioner referred the matter to HREOC for inquiry pursuant to s.57(1)(b) of the Act. Pursuant to s.59 of the Act I conducted a public hearing into the complaint on 22, 23, 24 and 29 September 1997.

2. THE LAW

The relevant sections of the Act are as follows:

s. 5(1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

s.5(2) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.[1]

s.14(1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy:

(a) in the arrangements made for the purpose of determining who should be offered employment;

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

s.16 It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's sex, marital status, pregnancy or potential pregnancy:

(a) in the terms or conditions on which the principal allows the contract worker to work;

(b) by not allowing the contract worker to work or continue to work;

(c) by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or

(d) by subjecting the contract worker to any other detriment.

3. THE EVIDENCE

Robyn McLachlan graduated from Monash University in 1974 with a Bachelor of Science degree. She was then employed by Monash University as a technical assistant in the Department of Genetics and later as a research assistant in the Department of Physiology. She commenced work at the Peter MacCallum Cancer Institute ('PMCI') in January 1976 in the pathology department as a Grade One Hospital Scientist. PMCI is located in Melbourne. It has one of the largest medical oncology and haematological units in Victoria and is the largest independent cancer treatment centre in Australia.

Between 1976 and 1995, Ms McLachlan received a number of promotions to reach the rank of Hospital Scientist Grade 4 in July 1992. From 1992 to July 1994 she was the deputy to the senior scientist, Mr John Sammons and she was responsible for the protein laboratory. Ms McLachlan specialised in biochemistry and was a recognised expert in the technique known as electrophoresis. The evidence of those witnesses who worked with Ms McLachlan or observed her work, said her expertise was acknowledged in Australia and internationally. Dr Andrew Wootton, a senior biochemist at Royal Melbourne Hospital said that Ms McLachlan had been one of the leading exponents of protein chemistry over 15 years. Dr Paull said her expertise was `undoubted' and Professor Best said she had a very high level of acknowledged expertise in protein chemistry.

While she managed the protein laboratory, it appears that the bulk of Ms McLachlan's work involved diagnostic testing in the protein lab including investigation of unique cases. She also acted as the duty biochemist, on rotation with other senior scientists. Ms McLachlan supervised junior staff members and was involved in education and training, although these activities constituted approximately 15% of her duties.

At the relevant time, Ms McLachlan supervised one other staff member, Ms Suzanne Callaghan, a Grade One Hospital Scientist. Ms Callaghan gave evidence that she worked in the same department as Ms McLachlan between 1987 and 1994 and during this time worked directly with her in the PMCI protein laboratory. Ms Callaghan described Ms McLachlan as a very hard taskmaster and having extremely high standards. At the same time, Ms Callaghan said Ms McLachlan was fair and conducted herself in a professional and efficient manner.

The circumstances giving rise to this complaint concern events between May 1994 and February 1995. Following negotiations between PMCI and St Vincent's, PMCI entered into a Memorandum of Understanding with St Vincent's Hospital on 20 May 1994.[2] Both institutions sought to integrate their pathology services with the aim of optimising the medical care and services of both institutions. Under the Memorandum of Understanding, it was understood that PMCI and St Vincent's were `independent autonomous organisations with compatible aims and objectives but without formal relationship or partnership outside this Memorandum of Understanding.'[3] The objective of the arrangement was to share staff and facilities. In effect, this arrangement resulted in the PMCI laboratories and staff being physically re-located to St Vincent's Hospital.

The Memorandum of Understanding did not specifically deal with the status of staff who were employed by PMCI and physically located at St Vincent's. It was proposed that there may be joint appointments to create joint departments (Clause 2.1). Clause 2.5 of the Memorandum of Understanding provided as follows:

"PMCI and St Vincent's shall use their best endeavours to enter into a separate contractual Agreement for the provision of pathology services to PMCI by the integrated PMCI and St Vincent's pathology services within a period of less than twelve months of the signing of the Memorandum of Understanding. The contractual Agreement shall incorporate clinical services, financial, staffing and equipment arrangements, the role of the PMCI Director of Pathology and the ongoing use of the PMCI's name."

During the period giving rise to this complaint the Agreement contemplated by clause 2.5 did not eventuate.

Clause 3.1 provided that the PMCI staff would be subject to the St Vincent's rules while working on St Vincent's premises but on the evidence before me, when the PMCI staff relocated to St Vincent's the responsibility for personnel decisions was not clear. Dr Ken Sikaris, the Acting Director of Pathology of St Vincent's at the time, said that his role was to take overall scientific responsibility for all reporting in chemical pathology. He was not directly responsible for the employment of the PMCI staff but was responsible for the work they were doing. He described the situation as `a fairly messy arrangement'.

The move from PMCI to St Vincent's occurred quickly and the relevant staff were relocated by mid July 1994. Ms McLachlan and Ms Callaghan were accommodated in the protein laboratory at St Vincent's. They shared the laboratory with Mr Michael Shaw, a St Vincent's employee. From July 1994, Ms McLachlan and Ms Callaghan continued to perform the diagnostic tests as they had done when they were physically located at PMCI. Ms McLachlan said that initially her relationship with Mr Shaw was `OK' because he stayed in his corner and ran his operations independently. Ms Callaghan said she found Mr Shaw `extremely hostile' and that he made the transition uncomfortable for them. It was clear that there were difficulties on both sides. Dr Sikaris gave evidence that Mr Shaw talked to him about his future. Dr Sikaris said that Mr Shaw had reached a state of hopelessness about the situation.

While Mr Shaw and Ms McLachlan were given equal control of the work, the aim was to integrate the work of the two laboratories. Ms Callaghan observed that Mr Shaw began to withdraw and in her opinion, he seemed unable or unwilling to be involved in the merger. By October 1994, Mr Shaw had moved to a different part of the department. Ms McLachlan was left to run this part of laboratory. At a staff meeting on 9 October 1994, Mr Ken Knight circulated a list of responsibilities and tasks for senior staff. There was discussion about the responsibilities. Under the "Proteins" area Ms McLachlan and Mr Alan Riglar were both listed as the supervisors. Ms McLachlan was responsible for the areas of protein, urine and CSF electrophoresis and Mr Riglar for Nephelometry. [4]

The difficulties which were occurring in the protein lab were reflected throughout the merging departments. The evidence of all relevant witnesses indicated that the proposed merger was not an easy one. It was variously described as awkward, antagonistic, uncomfortable, hostile and unfriendly. From the perspective of St Vincent's staff, this was part of an ongoing rationalisation which commenced in the late 1980's. Professor Best, Dr Sirakis and Dr Mary Waters, the current Director of Pathology Services of St Vincent's, gave evidence about the process of rationalisation and restructuring occurring at this time. Dr Sikaris said that there was a lot of anxiety about people losing positions at St Vincent's.

From the perspective of the PMCI staff, they felt unwelcome and uncomfortable. Ms Callaghan said she felt that they were required to fit into St Vincent's structure without any assistance. They were not given orientation or told where the basic facilities, such as toilets and cafes were located. While there were a number of meetings to discuss the proposed amalgamation, basic matters such as orientation for the PMCI staff was overlooked. The minutes of a meeting held on 3 August 1994 indicate that some steps were to be taken after the matter was raised by Ms McLachlan.

Associate Professor James Best of St Vincent's Hospital was responsible for the integration of the St Vincent's and PMCI pathology departments. In February 1994, he was appointed as the Acting Director of the Integrated Department of Special Chemistry at St Vincent's for one year. He had overall responsibility for the restructure of the pathology services. Professor Best encountered a number of obstacles particularly with the need to reduce staff numbers. In August/September 1994, St Vincent's Hospital engaged EW Consulting Pty Ltd, a management consultant firm to assist with the integration and restructure on a 12 month contract.

EW Consulting Pty Ltd ("EW Consulting") is a consulting company run by Mr Edgar Wilson and Mr Peter Geary. The terms of engagement were not provided to the Commission during the course of the inquiry, so the exact nature of the services provide to St Vincent's and its staff are not clear. There was sufficient evidence to conclude that the company was an agent of St Vincent's and made decisions concerning the structure and operation of the combined pathology services on behalf of and for St Vincent's. There was no evidence of any relationship between PMCI and EW Consulting.

Professor Best agreed in cross examination that he was not consulted about the decision to engage EW Consulting. He agreed that the demarcation between his responsibilities and those of EW Consulting were unclear. Mr Wilson was given overall responsibility of St Vincent's pathology. The pathology staff reported to him and he reported to the Director of Clinical Services. Mr Wilson described his role at St Vincent's in the following terms:

".... there were several objectives to be met. The first one was the completion of the integration of disparate units into one enterprise; the second one was the relocation of that enterprise from its various sites around St Vincent's Hospital into a new premises; this one was in relation to those premises, to ensure that the space, as designed by the disparate and competing units, was in fact conducive to a productive pathology enterprise and the fourth one was in fact to save a million dollars."[5]

In relation to the restructure, he said that people would be trialed over a six to seven month period and that the new structures would evolve out of the trial.

Professor Best said that the process was entirely driven by the consultants. He said:

"When EW Consulting were called in, suddenly the pace of change accelerated and they had a way of doing things that was totally different from any other appointment process that I have ever been involved with and I think there were lots of things that were unsatisfactory about it. I would have preferred a better balance between managers and scientists or medically qualified people. Whereas it was I think slanted a bit too much toward EW Consulting."[6]

In late August or early September 1994, Mr Wilson convened a meeting of all the staff in the pathology department. He informed them that his role was to merge and streamline the laboratories. Ms McLachlan recalled him talking about working in teams and the future of the work. She did not recall him talking much about what would happen within each of the laboratories. Ms McLachlan said she personally had little contact with Mr Wilson throughout this period.

On 7 November 1994, a circular memorandum from Mr Wilson, of EW Consulting on St Vincent's Pathology letterhead, was distributed to `All Scientific staff of the integrated laboratory services of Royal Victorian Eye and Ear Hospital, Peter MacCallum Cancer Institute and St Vincent's Hospital.' The memorandum was titled `Organisational Structural Change and Associated Leadership Opportunities' and read as follows:

"The first step in creating an Executive Forum to manage the process of change, is the selection of the persons to be involved. We face budget imperatives, changes to service logistics and the introduction of the new I.T system. The efforts of all our staff will be needed to be well coordinated and the ramifications and precedence of decisions well considered.

As previously discussed the proposed structure is an Executive Forum which will be chaired by Peter Geary or myself in the short term, with one scientist and one pathologist from each of the four cost centres/sections of the laboratory. In addition there will be opportunities for a few to be involved in the implementation, maintenance and further development of Pathology IT system and one position for a Scientific Purchasing Officer in order to centralise all ordering.

To facilitate selection processes, expressions of personal interest are hereby called. Please complete the form below with your personal particulars and positions of interests.

Ed Wilson"

On its face, this memorandum is somewhat cryptic as to the positions on offer or what was proposed. The situation was clarified by the evidence and I understand that the `cost centres' were four units of the pathology department known as chemical pathology, haematology, microbiology and anatomical pathology. The protein laboratory came within the area of chemical pathology.

The proposal was to appoint a senior scientist to head up each of these `cost centres'. The memorandum was seeking expressions of interest from St Vincent's, PMCI and Royal Victorian Eye and Ear Hospital scientists to apply for several positions as senior scientists including that of Senior Scientist of Chemical Pathology. Those who wished to be considered for a position ticked a box and returned the form to Mr Wilson. Ms McLachlan completed the form and indicated her interest in the position of senior scientists of chemical pathology. She considered that it was important to show that she was keen to get onto the management team.

There was no evidence of any consultation with the St Vincent's personnel department or the PMCI department about recruiting for the position. Those who expressed an interest were not given a position description, nor any selection criteria for any of the positions. They were given no information about what the position would entail - its responsibilities, duties, reporting lines etc. Professor Best, who was part of process described the process as a `kangaroo court' or like the `wild-west'. It is telling that he recalls a conversation with Mr Wilson, in which Mr Wilson said:

"There may be some consequences of this approach that we're going to face further down the track".[7]

In the absence of a job description or selection criteria, Ms McLachlan said that she understood the position to be mainly a management job. Another candidate, Dr Phillip Paull who was eventually appointed to the position, was asked whether he knew what the job was when he went into the interview. He said:

"Everybody knows what the senior scientist's job is. All of us that stood a chance of getting that job had worked in an environment like that for 15, 20 years."[8]

Mr Wilson said the job focussed on management. He said:

"The position was someone to be selected from amongst a group of peers to actually play a co-ordinating role during the shakedown of this amorphous thing into something which got a progressively more defined shape ...

The selection criteria we were all looking for was a commitment to the continuation of the enterprise, a communication skill, an understanding of where the process was at and why were in the process, if you like, and perhaps in looking forward, an expression of their intention or approach to the issues that they would face in coordinating that group of people."[9]

Ms McLachlan along with 11 other scientists applied for the position of Senior Scientist of Chemical Pathology. They were not required to submit any material about themselves, their skills or qualification as part of the process. There were applicants from both PMCI and St Vincent's. It is not apparent from the evidence whether there were any candidates from the Royal Victorian Eye and Ear Hospital. Ms McLachlan was the only woman applicant. No short list was prepared and all candidates were interviewed on 29 and 30 November 1994 in Mr Wilson's office by a panel consisting of Mr Wilson, Associate Professor Best, Mr Damien L'Huillier, the business manager of St Vincent's pathology and Dr Andrew Wootton. Dr Wootton was a senior biochemist at Royal Melbourne Hospital, who participated on the interview panel as the external interviewer, at the request of Mr Wilson. Ms McLachlan recalled that Mr Peter Geary was also on the panel, but this is at odds with the evidence of Mr Wilson, Drs Paull and Wootton and Prof Best. Mr Wilson said Mr Geary was overseas at the time. There was no-one from the Eye Hospital or from the PMCI on the panel. Obviously the panel members were all men.

Dr Wootton had participated in interview panels for such positions prior to the interviews on 29 and 30 November. He recalled participating in interviews at St Vincent's on a previous occasion. Dr Wootton said he was not provided with any information about the candidates prior to the interviews, such as curriculum vitae. He said that only one of the candidates provided a curriculum vitae and that was during the course of the interview. Dr Wootton also said that he was not provided with any information about the position, such as a duty statement or position description. He said that Ed Wilson gave a fairly extensive introductory set of remarks to each of the candidates about the position and its requirements. From this he concluded that the role was principally a management role of a large and multi-disciplinary laboratory.

In cross examination he agreed with counsel for the complainant, that the interview process was unusual and he agreed that it was `unusually informal', but did not consider that the process was flawed. With respect to Ms McLachlan's application, he said that he formed the view that she was not specifically interested in the position and was not the appropriate person for the job.

Apart from Dr Wootton, Ms McLachlan and Mr Wilson also gave evidence about the interview. Neither Mr Wilson nor Ms McLachlan could specifically recall the questions asked by the panel. Ms McLachlan said that Mr Wilson did most of the talking and as far as comments are concerned she recalled Mr Wilson responding to a question she raised by saying something about having a woman's perspective. Mr Wilson said that he may have made such a comment. Dr Wootton did not recall whether Mr Wilson said this.

Dr Paull also gave evidence about his interview. I asked him whether it struck him as a little strange or unusual the way in which the senior scientist's position was set up. Dr Paull said that Mr Wilson had a fairly idiosyncratic management style and that the process of setting up the interviews was idiosyncratic. With respect to the interview itself, Dr Paull said he thought it was very conventional. This was because the interview panel included an external person to oversee the process.

Ms McLachlan was informed that her application was unsuccessful by a letter dated 6 December 1994. The letter was on St Vincent's letterhead and signed Mr Wilson. Ms McLachlan said that was not surprised by this decision, given that there were scientists who she considered better qualified for the position. Around this time, Mr Wilson announced that Dr Paull was appointed to the position of Scientist/Manager of Chemical Pathology at a meeting of the department.

Ms McLachlan is not complaining that the appointment of Dr Paull was discriminatory, rather that what followed from this interviewing process and subsequent appointments based on these interviews, was discriminatory.

At the same time as Dr Paull's position was announced, the appointment of scientists to positions described as team leaders were announced. Ms McLachlan said that either Dr Paull or Mr Riglar came into the lab and announced that Mr Riglar (a St Vincent's employee) had been given the position of team leader of proteins and immunology, as well as being the deputy to Dr Paull. The other appointments included Mr Graham Carter (a St Vincent's employee) to routine chemistry, Mr Steve Sawyer (a St Vincent's employee) to immunoassays, Mr Nick Crinis (a PMCI employee) to urgent testing and reception and Mr John Sammons (a PMCI employee) to the amalgamation of St Vincent's and PMCI. All of these men, with the exception of Mr Crinis, had also applied for the Senior Scientist position.

It is the decision to appoint Mr Riglar as the team leader of the proteins and immunology group which Ms McLachlan alleges constituted less favourable treatment on the grounds of her sex. Ms McLachlan said that when she was told of this appointment, she was `stunned', `horrified', `amazed' because she had been acting in that position since July 1994. She said she `could not believe that this could happen out of the blue with no notification'. It is clear that she considered the decision as effectively demoting her status and position in the department.

Her sentiments were shared by other staff. Ms Callaghan said everyone was aghast that team leaders had been appointed because there were many people in more junior graded positions would have considered applying for a team leader position. She said they were not given the opportunity to apply. Dr Sikaris said that a number of staff members expressed concern about the appointment process and their lack of opportunity to apply for the team leader positions.

There was conflicting evidence about the role of the team leader positions and what the positions entailed. The decision to appoint team leaders and the selection of appropriate candidates is confusing. Ms McLachlan said the position involved managing the protein laboratory, coordinating all the scientific testing, looking after resources within that laboratory and to make sure that it ran according to NATA standards and provide a good service for clinical and the patient group.

Mr Wilson was not able to provide a clear description of the team leader roles. He saw these roles as being involved in management, providing a simple line of communication and assistance in logistics.

While Dr Sikaris was not involved in the selection process of the senior scientist and team leader positions, he said that he had discussed process with Mr Wilson. He had given his recommendations about appropriate candidates for the senior scientist position and suggested a further round of interviews for the team leader positions.

Following the announcement, Ms McLachlan said she complained to Dr Paull. She said Dr Paull reassured her that Mr Riglar was merely the `titular head of the lab'. She said she interpreted the conversation as Dr Paull saying that she as was the expert scientist, that she would have autonomy over the lab.

Dr Paull recalled the conversation with Ms McLachlan but did not have a clear recollection of a specific conversation about the matter. Dr Paull said that he did not recall referring to Mr Riglar as the `titular head'. He said that he thought the message he tried to convey to Ms McLachlan was that her expertise was acknowledged and Mr Riglar was not going to tell Ms McLachlan how to do particular tests. In terms of the day to day administration, Dr Paull said that it was appropriate that Mr Riglar bear the responsibility.

Ms McLachlan said Dr Paull told her that the appointments were Mr Wilson's idea and that Mr Wilson did not think there was any point re-interviewing people for the team leader positions. However, Dr Paull did have some input into the selection of staff for the positions of team leaders. He said that they were looking for a combination of scientific expertise and managerial experience and expertise.

In examination in chief he was asked about the process and I have extracted the relevant part of the transcript.

"Dr Paull: There was no selection process as such. My recollection of how it worked was that I was told who my deputy was going to be.

Mr Lacy: Who was that?

Dr Paull: That was Mr Alan Riglar. There's absolutely no question about that. That was presented to me as a reality. I had no input into the process.

The Commissioner: How did you feel about that?

Dr Paull: My own view is that a sensible way to proceed would be to consult the person who you've just appointed as chief scientist but that wasn't done. I felt no rancour about that. I wasn't distressed or cranky about it in any way. I just thought it was probably smarter to do it another way. As for other positions of responsibility in the department I felt that more or less fell naturally into place. There were certain people who had expertise and seniority and functionally those issues just fell into place.

Mr Lacy: When you say those issues just fell into place, who was actually decided as being responsible for any particular area?

Dr Paull: Well, I guess I mentioned to Mr Wilson who I thought were appropriate and they were the most senior people in each functional area. ..."[10]

Ms McLachlan then raised her concerns with Mr Wilson. He said he recalled having many conversations with Ms McLachlan, but not specifically about this issue. Ms McLachlan said Mr Wilson assured her that the department had to build up expertise and expand, therefore her position was safe. It appears that Mr Wilson had little knowledge about the organisation of the labs and the difficulties faced by both St Vincent's and PMCI staff adjusting to the new arrangement given that he said in his evidence that:

"I would not have known the levels of discomforts or leadership relationships that may have existed".[11]

I find this an extraordinary comment for Mr Wilson to make given his task was to restructure the department and to make a management and leadership decisions. The evidence for all witnesses confirms that there was a very high level of discomfort experienced by all.

Ms McLachlan said that Mr Wilson told her if she was dissatisfied to raise it with "EEO" but he does not recall saying this. Given Mr Wilson's ignorance about the St Vincent's equal employment opportunity polices and the personnel procedures, I think it is unlikely that he would have made such a suggestion.

Ms McLachlan said she was still unhappy about the process and says that there were no formal avenues to raise her concerns.

Following this, Ms McLachlan continued to perform her duties and there appeared to be no significant change other than she and Ms Callaghan had to train Mr Riglar to perform certain tasks.

Later in December 1994, six of the eleven senior St Vincent's Hospital scientists who had also unsuccessfully applied for the Senior Scientist of Chemical Pathology were made redundant.

The implications of the decision did not become apparent to Ms McLachlan until February 1995. In February 1995, PMCI decided to withdraw from the amalgamation with St Vincent's. It decided to re-establish its laboratory but on a smaller scale. Most of the PMCI staff located at St Vincent's went back to PMCI including the two PMCI staff members who had been appointed as team leaders in December 1994. Mr John Sammons, who was responsible for the amalgamation between St Vincent's and PMCI was made redundant and Mr Crinis was appointed to a new position at PMCI as a senior scientist. Given that PMCI's services were on a smaller scale, several scientists were made redundant including Ms McLachlan. Ms McLachlan's employment was terminated in July 1995.

It is easy to conclude that the entire recruitment process contradicted in everyway the procedures and policies which were supposed to operate at St Vincent's. It can only be described as shockingly incompetent. One of the exhibits before me (Exhibit C2) was a copy of the St Vincent's Hospital Melbourne's Equal Employment Opportunity Policies and Procedures (`EEO Policy'). It is dated November 1992 and was the policy in place at the relevant time. The EEO policy affirms St Vincent's commitment to equal opportunity in employment and non discrimination. With respect to recruitment and selection, there was a clear policy statement which reads as follows:

"St Vincent's Hospital (Melbourne) will recruit, promote and retain staff of excellence in their field. Recruitment and selection is achieved on the basis of merit as assessed in an atmosphere of fair and open competition.

The recruitment and selection process is devised to fill vacancies in an efficient and professional manner, ensuring minimum possible disruption to services and the adherence to the spirit and legal requirements of the Public Authorities (Equal Employment Opportunity) Act 1990 and the Sisters of Charity Health Services Philosophy.

St Vincent's Hospital Recruitment and Selection Procedure must be followed to ensure adherence to this policy. The Personnel Services Department is accountable for the overall administration of the policy.

It is the responsibility of every Department Head to ensure compliance with the Policy.

David Campbell

Chief Executive Officer"

The policy then details the manner and procedures for recruiting and appointing staff, be it through external or internal advertisements. The policy applied to permanent full-time and part-time positions, temporary positions of longer than 6 months and internal promotions. The policy sets out the manner in which positions should be advertised - even identifying where notices were to be posted. The EEO policy prescribed how selection panels are to be constituted - that there be a gender balance on the panels, the development of position descriptions and selection criteria, the treatment of applicants, short listing and the manner in which an interview is to be conducted and decisions communicated to applicants.

In this case there was a blatant disregard for the policy and procedures. The failure to follow the policy was a serious dereliction of the responsibilities of those who should have known better. Mr Wilson had run the consultancy business for 5 years. Prior to commencing this business he was the general manager of Dorevitch Pathology. He said that he had had 25 years management experience. In this capacity he had had experience in appointments of senior and middle managers. Mr Wilson professed to understand the principles of equal opportunity and affirmative action. He gave evidence that he had experience in creating and `keeping active' affirmative action policies. Yet he had not read and indeed said he was not aware of the St Vincent's EEO Policy. He said he was aware of a workplace agreement with the union but was not aware of any other employment policies operating at St Vincent's. My observations of Mr Wilson in the witness box leads me to conclude that at best, he had and continues to have a superficial knowledge of the principles of equal opportunity in employment.

Professor Best was a senior member of staff of St Vincent's, but said that he was aware of the EEO policy but had not seen or read it. Yet Professor Best said he thought the process was a `kangaroo court' but did nothing to keep Mr Wilson's decisions in check. Those who should have been involved in the process were not. Those who had overall responsibility for the process acted in contradiction or in ignorance of these policies.

For those candidates who were PMCI staff who were new to the procedures of St Vincent's, it appears that no information was given to them about St Vincent's recruitment policies and procedures. They were particularly disadvantaged.

4. FINDINGS

4.1 Grounds under the Sex Discrimination Act

The essence of Ms McLachlan's complaint is the failure to be considered or appointed to the position of team leader of proteins and immunology. She says that the process of selecting team leaders was unfair because the team leader positions were not advertised, people were not invited to apply and there was no opportunity to demonstrate her suitability for the position. The complaint was initially brought as a complaint about employment and within terms of s.14(1) of the Act but during the hearing Ms Richards, for the complainant, argued in the alternative that the complaint could also come within s.16, as a complaint of sex discrimination of contract workers.

4.2 Section 16 - contract workers

I can conveniently dispose of the issue concerning s.16 at this point. Under s.16, it is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's sex by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made, or by subjecting the contract worker to any other detriment.

The Act defines `contract worker' in s.4 as follows:

"contract worker" means a person who does work for another person

pursuant to a contract between the employer of the first-mentioned

person and that other person.

For s.16 of the Act to apply in these circumstances, Ms McLachlan must demonstrate that she was performing work for St Vincent's pursuant to a contract between St Vincent's and PMCI. This is to be determined as a question of fact.

I am not persuaded on the evidence that there was such a contract. The Memorandum of Understanding concluded between St Vincent's and PMCI was an agreement concerning the sharing of pathology services. It was not an agreement under which PMCI contracted workers to St Vincent's. In fact, the terms of the Memorandum emphasised the autonomy of both institutions and it provided that an agreement would be concluded at some future time to cover the staffing arrangements. I have set out clause 2.5 on page 5 above. This agreement did not come about.

At the relevant time, Ms McLachlan was remunerated by PMCI and remained a PMCI employee. There is no evidence which supports a finding that Ms McLachlan was a contract worker. Accordingly s.16 of the Act does not apply.

I therefore do not need to address the submission of counsel in relation to the scope of the referral and the matters which could be the subject of this inquiry.

4.3 Section 14(1) - Discrimination in the provision of employment

Ms Richards submitted that St Vincent's discriminated against Ms McLachlan on the ground of her sex. First, in the arrangements made for the purposes of determining who should be offered employment and secondly, in determining who should be offered employment within s.14(1)(a) and (b) of the Act.

The situation in relation to the complaint under s.14 is somewhat complicated. It was agreed by all the parties that at no time was St Vincent's Ms McLachlan's employer, notwithstanding that Ms McLachlan was performing her duties at St Vincent's and under the instruction of senior scientific managers at St Vincent's. The complaint is, therefore, cast in terms of an application for employment and St Vincent's as a potential employer.

This issue is also complicated by the manner in which the whole process was conducted and whether there was in fact a position or positions being offered. The inquiry has required me to consider the offer of two separate positions - that of the Senior Scientist of Chemical Pathology and then the position of team leader of the Proteins and Immunology group.

In relation to the position of Senior Scientist of Chemical Pathology, I find that a position was offered.

In relation to the position of team leaders, St Vincent's says that there were no positions on offer. The team leaders were not formally promoted in the sense of an increase in grading or salary. Ms McLachlan herself concedes that the positions of team leaders were more to formalise the current state of affairs. Mr Wilson said that those people were there to facilitate change. The respondent argued that there was no intention that those people appointed as team leaders would eventually fulfil the positions. Yet, in cross-examination Mr Wilson agreed that barring any poor performance, these people would most likely be appointed permanently to the role. Three of the St Vincent's employees who were appointed as team leaders had their positions as team leaders confirmed in mid 1995.

On the balance of probabilities, I find that there were changes in the responsibilities and duties performed by those who were appointed to the team leader roles and for the purposes of s.14(1) , there was an offer of employment - even if it can only be described as a temporary position.

While the process was driven by Mr Wilson, I find that his decisions were made on behalf of St Vincent's and that St Vincent's is the proper respondent. In this respect, the operation of s.106 of the Act is irrelevant. Section 14 is cast in terms of an employer's liability, so a complaint under this section may only be brought against the employer and not against individual managers or fellow employees. Accordingly, there is no need to rely on s.106 to make St Vincent's Hospital vicariously liable for Mr Wilson's acts - they are simply the acts of St Vincent's for the purpose of s.14(1) of the Act.

4.4 Indirect discrimination in the offer of employment

Ms Richards argues that St Vincent's indirectly discriminated against Ms McLachlan in the terms of s.5(2) of the Act, as it then was. To establish indirect discrimination in this case, the complainant must satisfy four elements:

1. St Vincent's required Ms McLachlan to comply with a requirement or condition.

2. A substantially higher proportion of men than women comply or are able to comply with the condition or requirement.

3. Ms McLachlan does not or is not able to comply with the condition.

4. The condition or requirement is not reasonable having regard to the circumstances of the case.

4.4.1 The condition or requirement

It was argued that the relevant condition or requirement was the selection process itself which Ms Richards qualified in the following way:

"... the requirement or condition was that in order to be selected as a team leader within chemical pathology the contenders for the position were required to satisfy an informal, unadvertised selection procedure based on subjective rather than objective selection criteria."[12]

I accept that `condition or requirement' should be been liberally construed[13] but I have some reservations about finding that an informal selection procedure was a condition or requirement in this case. Ms Richards relied on the decision of Watches of Switzerland Ltd v Savell [1983] IRLR 141, where the Employment Appeals Tribunal exercising jurisdiction under the Sex Discrimination Act 1975 (UK) held that an informal selection procedure could be a condition or requirement for the purpose of establishing indirect discrimination. A close reading of that decision indicates that the `condition or requirement' was not just the informal selection process, but that the informality meant that Ms Savell was unaware of certain other criteria such as `flexibility, co-operative attitude, mobility and willingness or work on Saturdays whether or not required by the specific post'. It was this criteria, rather than just the informal process which Ms Savell was unable to comply with. The relevant extract is at page 145 of the EAT decision quoting paragraph 54 of the decision at first instance. It appears that this decision has not been specifically followed in any subsequent decisions but was referred to by the Court of Appeal in Perera and the Full Bench of the Federal Court of Australia in Styles.¹⁴

Applying the decision to the facts of this matter, as I understand Ms Richards' submission, the condition which she relies on is just the selection process.

4.4.2 Did a substantially higher proportion of men than women comply or are able to comply with the condition or requirement?

The next element of s.5(2) of the Act is to examine whether a substantially higher proportion of men than women can or are able to comply with the condition or requirement. This requires me to be persuaded that a higher proportion of male scientists complied or were able to comply with the requirement to participate in an informal selection process than women scientists.

Ms Richards submitted that this element could be established on the basis of the breakdown or ratio of men to women in the biochemistry area. This is where, I consider the argument based on s.5(2) fails. Accepting that there was a condition or requirement such as complying with an informal selection process, then that condition applied to everyone. While I accept that there are less women than men working in the area, it is misconceived to suggest that because there are fewer women than men in the area that women are automatically less able to comply with the condition. The consideration of whether a substantially higher proportion of men being able to comply as against women, must be assessed by examining the relevant pool in which the proportions are to be compared.[15] With respect to the Senior Scientist of Chemical Pathology position, the pool was the 12 scientists who applied for the position. There was only one woman in this pool, Ms McLachlan.

The relevant pool for the team leader position is little more difficult to establish. There was no evidence or submissions addressing this specific issue. There were five or six team leader positions on offer and the evidence indicated that each team leader was required to have management skills or talent together with the requisite technical or scientific experience to lead the team. In one sense, the pool would be all those working in the pathology department. As Ms Callaghan and Dr Sikaris said there were many people working in the department who had not applied for the Senior Scientist's positions but would have applied for a team leaders position had they been given the opportunity. The failure to advertise the team leader positions disadvantaged all staff (men and women) who had not applied for senior scientist's position.

However, Ms McLachlan's complaint concerns the team leader's position for proteins and immunology. She did not suggest or indicate that she would have considered herself appropriately qualified for the team position of another group. In this respect, the pool is limited. [16] On the evidence, the pool is those scientists working in the proteins and immunology group.

The mere fact that there are more men than women in these respective pools is not sufficient to demonstrate that a higher proportion of those men are able to comply with the requisite condition than women. In this case, there was no evidence that a substantially higher proportion of men scientists in the proteins and immunology group were able to comply with the informal selection process as compared to Ms McLachlan or the other women scientists. The evidence focused generally on the difficulties which informal selection process impose upon women, yet in this case, the process was one which affected men and women equally.

As this element is not satisfied there is no need for me to consider the remaining two elements under s.5(2) of the Act.

In my view, the case is simply one of direct discrimination with respect to the position of the team leader. Was Ms McLachlan treated less favourably than Mr Riglar because of her gender when the Proteins and Immunology group team leader was selected?

To frame it as an indirect discrimination complaint is to complicate unnecessarily the situation. In previous cases, where HREOC has inquired into complaints where women have argued that the systemic bias has operated to treat women less favourably than men, HREOC as considered that those complaints be examined as one of direct discrimination: see for example Dunn-Dyer v ANZ Banking Group (1997) EOC |P92-897 and also Empson v Monash University (1995) EOC |P92-694. In Dunn-Dyer, decisions made on impressions, subjective views or unconscious bias which lead to less favourable treatment was evidence of direct discrimination.

4.5 Was the interview process discriminatory?

I question that I must determine is whether the lack of a formal recruitment procedure disadvantage Ms McLachlan on the grounds of sex?

The complainant argues that the absence of women at higher positions, the numerically small number of women, together with a male dominated panel and the absence of formal procedures had the effect of creating an unconscious bias against her. This unconscious bias resulted in less favourable treatment on the grounds of sex because Mr Riglar was appointed as the team leader for the proteins group.

Ms Julie Roberts was called as an expert in the area of equal opportunity practice. The respondent contested her status as an expert. Notwithstanding the respondent's objection, I found Ms Roberts' evidence interesting and helpful to understanding the effects of historical or systemic discrimination against women. I also found the references and articles which Ms Richards referred me to of assistance. In effect Ms Roberts explained how decisions based on impressionist views of candidates have the effect of disadvantaging women. The lack of selection criteria and established practices, mean that unconscious bias or assumptions infiltrate the decision making process. This combined with the under representation of women at middle to senior management levels in organisations results in women experiencing some initial barriers in applying for such positions.

There was evidence about the number of women working in the various areas covered by the pathology department. The evidence indicated that women constituted 30% of the total staff and in the area of biochemistry, where Ms McLachlan worked, she was the highest qualified women and the only senior woman scientist.

Dr Waters gave evidence on behalf of the respondent about the representation of women. She is currently the Director of Pathology Services and Microbiology at St Vincent's. She commenced employment with St Vincent's in 1972 and was appointed to her current position in March 1996. She said that a woman had been selected for one of the Senior Scientist positions in the area of micro-biology. I understand that the same informal selection procedure applied for that position, although there was no specific evidence about the interview or selection process for positions other than those in Chemical Pathology. Dr Waters was not involved in the selection of team leaders in December 1994. Her evidence provided some helpful background about the rationalisation of pathology services and about the profile of women employees at St Vincent's.

Mr Lacy, counsel for the respondent, provided breakdowns and ratios of the numbers of men to women employees at both St Vincent's and PMCI. There is nothing in the statistical data provided by either party, which persuades me that the lower proportion of women employed by either institution proves that Ms McLachlan was treated less favourably in this case. Nor do I consider that the statistics alone indicate an unconscious bias or predisposition to discriminate. Those statistics must be read in light of any EEO policies and practices introduced and complied with by an organisation.

4.6 Failure to follow the St Vincent's EEO Policy

If there is a failing by St Vincent's in this case, it is not that there are fewer women employed as compared to men, but rather that it condoned a recruitment process which totally abrogated the existing policies and procedures. Further, that as an institution committed to the policies of non-discrimination it failed to make those who were responsible for making decisions about the Senior Scientist position and team leader positions accountable. St Vincent's has a duty to ensure that its policies are communicated effectively to its senior officers and that they accept the responsibility for fostering the policies.[17] It makes a mockery of all the principles of management to create polices and then fail to properly inform staff or ensure that polices are complied with. The evidence suggests that St Vincent's staff may have been aware of a policy but senior staff, such as Professor Best and Dr Paull had not read the policy. They had little or no understanding of it objectives or their responsibilities in relation to the policy.

However, the failure of comply with an EEO policy is not a breach of the Act. The issue for me to determine is whether the failure to comply with the established procedures invited conditions or an environment which made it more probable than not that Mr Wilson's failure to appoint Ms McLachlan was based on her sex.

I must find that there is a causal connection between the decision to appoint Mr Riglar in preference to Ms McLachlan and her sex.

If I accept that the position was one which required management skills, I must consider the evidence about Ms McLachlan's skills as a manger. She gave evidence of having managed the lab at PMCI and as acting as the deputy biochemist. Ms Callaghan gave evidence about her experience working and being managed by Ms McLachlan. She described her as a fair manager. In relation to the position at St Vincent's, it appears that the panel which interviewed her, had little or no knowledge about Ms McLachlan's management experience, but all candidates were in the same boat in this respect. Professor Best recalls that she was considered for the team leader position but he said he thought she did not have the requisite management skills. I find Dr Sikaris' evidence of most assistance on this point. In Dr Sikaris' opinion, if the Committee had used scientific criteria to select team leaders, then Ms McLachlan should have got the team leader job. But he said he thought the decision must have been based on management experience. Dr Sikaris, who gave evidence on behalf of the complainant, was asked about his observations of her management skills. He said:

"It's difficult to say. I mean, really she worked with Sue Callaghan for most of the time and they had a very cooperative relationship in the laboratory, arranging how the work was done and so on. She didn't - I mean, other than supervising Sue and helping - well advising the St Vincent's senior scientists on how things could be done better, she didn't really have a totally responsible management role at the time. So I don't have - just in a formal management sense with management meetings and setting goals and achieving them I can't really comment on Robyn's formal managements skills...".[18]

On the balance of probabilities, I find that Ms McLachlan was not appointed to the position of team leader of the protein and immunology group because she lacked the requisite management skills, not because she was a woman. There is insufficient evidence before me to indicate that Ms McLachlan was treated less favourably because of her sex or because any unconscious sex-based bias affected the decision making. I accept her argument that she was not given the opportunity to demonstrate any management skills, but in this respect she was in the same position as all the candidates.

It is clear that the procedures adopted by Mr Wilson and condoned by St Vincent's were manifestly defective. It was clearly unfair but unfair to all candidates.

I am afraid that the evidence does not support a finding of sex discrimination. While the process was inherently unfair, it was unfair for a host of reasons, but none that are related to sex. In this case, neither the failure to appoint Ms McLachlan to the position of senior scientist or team leader of proteins and immunology was made because of her gender.

5. CONCLUSION

For the reasons set out above I dismiss the complaint in accordance with s.81(1)(a) of the Act.

Dated this day of January 1998.

________________________________________

Michael Dodson

Hearing Commissioner [1] It should be noted that this was the law at the relevant time. Section 5(2) was amended on 16 December 1995 - see Sex Discrimination Amendment Act 1995 (Cth).

[2] Exhibit R3.

[3] Exhibit R3 - Recital D of the Memorandum of Understanding.

[4] Exhibit C9.

[5] Transcript p.251

[6] Transcript p.302

[7] Transcript p.302

[8] Transcript p.372 at 45.

[9] Transcript p. 278 - 279.

[10] Transcript p.364

[11] Transcript p.259.

[12] Transcript p.414.

[13] Empson v Monash University (1995) EOC |P92-694,Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor [1988] FCA 364; (1989) 84 ALR 408 at 423-424, Financial Sector Union v Commonwealth Bank of Australia (1997) (1995) EOC |P92-889.

¹⁴ See Perera v The Civil Service Commission and Anor [1983] IRLR 166, Secretary of the Department of Foreign Affairs & Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 258, 271.

[15] Australian Iron & Steel v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 169, 178, 185-186 and 202 - 203,Secretary of the Department of Foreign Affairs & Trade vStyles [1989] FCA 342; (1989) 23 FCR 251 at 259 - 263, 268 - 269 and Price v-Civil Service Commission [1977] UKEAT 1_77_1507; [1977] IRLR 291 at 294 and Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (unreported Full Bench of the Federal Court, 28 November 1997 per Sackville J at 40 - 43.

[16] See Hunter R Indirect Discrimination in the Workplace, Federation Press, 1992 at page 209 ff.

[17] See Evans v Lee and Commonwealth Bank (1996) EOC |P92-822 and Greenhalgh v National Australia Bank (1997) EOC |P 92-884, Kolavo v Ainsworth Nominees (1994) EOC |P 92-576, Hooper v Mount Isa Mines (1997)and Adams v Helios Electroheat Pty Ltd (1996) EOC |P92-856. While these decisions consider the failure to ensure compliance with EEO polices to prevent sexual harassment in the workplace, these principles apply equally to all forms of workplace discrimination.

[18] Transcript p.186.