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Human Rights and Equal Opportunity Commission |
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
RACIAL DISCRIMINATION ACT 1975 (CTH)
No. H98/85
JACK KORCZAK
Complainant
And
COMMONWEALTH OF AUSTRALIA
(DEPARTMENT OF DEFENCE)
Respondent
REASONS FOR DECISION OF INQUIRY COMMISSIONER
GRAEME INNES AM
Date of Decision: 16 December 1999
Hearing Venues: Sydney
Hearing Dates: 15 -17 March 1999
Appearances: Complainant represented himself
Respondent represented by Greg Peek of the Australian Government Solicitor
1. INTRODUCTION
This is an inquiry pursuant to section 24E of the Racial Discrimination Act 1975 (Cth) ("the RDA") into a complaint by Mr Jack Korczak against his former employer, the Department of Defence (“the Department”).
On 2 February 1997 Mr Jack Korczak made a complaint to the Human Rights and Equal Opportunity Commission ("the Commission") alleging discrimination in employment on the basis of his race. In essence, Mr Korczak complained that he was subjected to harassment and discrimination by a number of fellow employees over a lengthy period. This harassment involved comments concerning his accent and his Polish origin, as well as other behaviour allegedly directed at him because of his race. He further alleged that the management of the Department did not take his complaints about this conduct sufficiently seriously.
On 23 July 1998, the Race Discrimination Commissioner ("the Commissioner"), having attempted unsuccessfully to conciliate the matter, referred the matter to the Commission for inquiry pursuant to section 24E(1)(b) of the RDA.
I was appointed as Inquiry Commissioner to conduct this inquiry. On 15, 16 and 17 March 1999 I convened the inquiry in Sydney and heard evidence from both parties.
2. THE RELEVANT LEGISLATIVE PROVISIONS
The following provisions of the RDA are relevant to this inquiry:
9 Racial discrimination to be unlawful
(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.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
15 Employment
(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 or her 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.
(2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
(3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
(4) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(5) Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling-house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.
18 Acts done for 2 or more reasons
Where:
(a) an act is done for 2 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.
18A Vicarious liability
(1) Subject to subsection (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.
(2) Subsection (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.
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
18E Vicarious liability
(1) Subject to subsection (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 the person;
this Act applies in relation to the person as if the person had also done the act.
(2) Subsection (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.
3. EVIDENCE FOR THE COMPLAINANT
3.1 Evidence of the complainant
Mr Korczak told the Commission that he came to Australia from Poland, where he had studied for a technical degree and had partially completed a law degree. He and his wife, from whom he is separated, have two children.
The complainant said that he had worked in the Department for 11 years; from March 1987 to 1998. He regarded the first 9 years of employment as "a success". However, the final two years were quite the opposite and were a "horrible" period for him.
Mr Korczak described his difficulties at the Department as comprising three stages:
Mr Korczak was not able to remember the dates when these stages commenced and ended with any precision.
3.1.1 The first stage
The first stage involved the period when Mr Korczak worked at the Department's office in Concord. At the Concord office, Mr Korczak worked as a Technical Officer in the metallurgy laboratory. In 1989 when the laboratory closed, he became a technical inspector of equipment. In approximately 1995, the two sections at the Concord office - the mechanical and the textile sections - were merged under one supervisor, a Mr Terry Lake. Mr Korczak was located on the first floor, along with Mr Lake, while the textile section remained on the second floor.
At the time of the merger, Mr Korczak first came into contact with Mr Ken Wynne. He told the Commission that this was because Mr Wynne was required to come to the first floor to see Mr Lake, who was now his supervisor.
Mr Korczak described this period as involving "abuse from day one". He said that Mr Wynne would "focus" on him, imitate his accent, speak more loudly to him than to the others and ask him to repeat things. He said that Mr Wynne would do this "every time he saw me" which would amount to "a few times a day". When this occurred, Mr Lake and another employee, Mr Colin Besant, were present.
In cross-examination, Mr Korczak agreed that he did speak with an accent but that Mr Wynne was asking him to repeat things to make him angry. This was because of Mr Wynne's tone of voice. He did not agree with the proposition that Mr Wynne was generally abrupt in demeanour, saying that he was only abrupt to him and Mr Gibson. He did not agree that Mr Wynne was involving him in jokes, saying that "he just hated me" because of "discrimination".
Mr Korczak disagreed that Mr Wynne's conduct could have been a reaction to Mr Korczak goading him and commenting on the merger. He said that he did not stir Mr Wynne but that Mr Wynne came to his area and on eighty to ninety per cent of occasions said something to him.
Mr Korczak said that this abuse included statements like, "Jack, you go back to your own country" and, "You come from a country where people eat grass". He alleged that Mr Wynne forced him to repeat sentences several times over and this could occur two to three times a day or when Mr Wynne saw him. He also alleged that Mr Wynne told him that he did not like migrants. In cross-examination, Mr Korczak was unable to say how frequently this abuse occurred or what percentage of Mr Wynne’s comments was racist in nature.
The complainant said that in response to these comments he said "go away, back off" and did not participate.
Mr Korczak related an incident that he witnessed in the tearoom. He was not able to be specific about the date, nor was he able to be specific about when this incident occurred in relation to the above comments. He thought there were five to six people present, including Mr Lake. He said that Mr Wynne made derogatory and racist comments about Mr Charles Gibson's wife and children. Mr Gibson's wife is from Asia. Mr Gibson was not present when the statements were made. Mr Korczak agreed in cross-examination that he had not told Mr Gibson about the statements, nor had he raised them with Mr Lake.
Mr Korczak said he approached Mr Lake and told him that he could not take this conduct anymore. Two days later, Mr Korczak said that a minute appeared in the office from Mr Jenkins, a senior manager, indicating that harassment would be punished. He told the Commission that this was a satisfactory response and that Mr Wynne's behaviour stopped as he was rotated out of the section for three months. However, subsequently he found out that the memo was in response to a different matter and felt he had been misled by Mr Lake. He agreed in cross-examination that the memo was a "good thing" and that Mr Lake did wish to resolve the problem.
3.1.2 The second stage
This stage was approximately six to eight months from the merger of the two sections and involved a move to new premises at Defence Plaza.
Mr Korczak and his colleagues worked in workstations with chest height partitions. In one area were four desks for the complainant, Mr Colin Besant, Mr Dennis McGoogan and Mr Gibson. Mr Wynne's workstation was nearby. Mr Bert Lloyd, the manager, was in an office approximately one and a half metres away.
In this period, Mr Korczak makes the following allegations:
Mr Korczak was not able to recall specific details of these incidents nor the dates on which they occurred. He summarised the conduct by saying that Mr Wynne and his friends were "all the time on his back". During 1995, although there was tension and problems on a daily basis, he was able to handle it. He did not agree, however, with Mr Peek’s assertion that he could not point to any incident in the 12 months to December 1995. Mr Korczak did not disagree with Mr Peek's suggestion that the “farting” incidents occurred in 1996.
Mr Korczak said that he was very angry as a result of the “farting” incidents. He was shaken, angry and tense, and wanted to hit somebody. However, he knew he would lose his job if he did, so he refrained. The complainant said he did not laugh at the “farting” incidents. He did not agree with Mr McGoogan's evidence (see below) in this respect.
Mr Korczak then made a complaint to Mr John Rogers. It appears that this was made in December 1995. He could not recollect the terms but thought that it was in writing. This is confirmed in the referral report from the Race Discrimination Commissioner, and in other evidence. In that complaint he said that the situation was "intolerable" and that he had been "harassed". He said he complained because he could not "handle it anymore". Mr Shallis was appointed to investigate the complaint but Mr Korczak said he was persuaded to withdraw his complaint by Mr Lake on Mr Lake's assurance that Mr Wynne's behaviour would stop.
Soon after the complaint was withdrawn, Mr Korczak says that Mr Wynne approached him and laughed. It was at this point that Mr Korczak realised that his arrangement with Mr Lake, which was the basis on which the complaint was withdrawn, had been unsuccessful.
3.1.3 The third stage
Mr Korczak said he lodged another complaint in January 1997. Allegations from this period include:
Again, Mr Korczak was unable to provide clear details of the harassing incidents. He said that there was verbal harassment but that he did not "have memory" of them. He agreed that the name calling and imitating accent allegations happened at Concord and not Defence Plaza but said that there were "constant clashes" during this period. He denied that the conduct could be attributed to a personality conflict between him and Mr Wynne.
In relation to the "idiot" comments, Mr Korczak agreed that they were made as part of the car incident. He conceded that they had nothing to do with his race but said that it was important to view this in its whole sequence. Given Mr Wynne's earlier behaviour, this "felt like humiliation because of race".
Mr Korczak denies an incident of throwing a pen lid at Mr Wynne and said there were other incidents in which Mr Wynne threw papers at him. He conceded that Mr Wynne may have believed that he threw the pen lid.
Mr Korczak said that Mr Lake was behind his desk and observed these things occurring. On one occasion he was present and laughed. He said Mr Lake was "having a go" at him. He said that despite him not complaining between December 1995 and January 1997, management knew what was happening because they were present at the incidents. He agreed that it was "possible" that Mr Lake did not see what was happening but said there was a policy about "non action". He agreed that he did not report the incidents until January 1997. It appears from page 33 of the Referral Report that Mr Korczak complained about abuse by Mr Wynne as well as his "racist philosophy".
In reference to a team building exercise in November 1996, Mr Korczak did agree that there was no "trouble" because Mr Lake was actually there.
Mr Korczak said that Ms Marijana Andric was appointed to investigate his complaint in January 1997. He was disappointed with the investigation, however, and "just gave up". He then went off on extended sick leave and claimed workers compensation. However, he was denied compensation because stress was not a sickness.
In cross-examination the complainant agreed that he knew that Ms Andric came from a non-English speaking background and said he wrote to the respondent to the contrary because he was ill and did not feel good. Mr Korczak is here referring to the letter found at page 29 of the Referral Report. Ms Andric's report of her investigation dated 24 June 1997 appears at pages 30 to 32.
Mr Korczak said that in December 1997 he was given the option to return to work at Garden Island for 20 hours per week. He was not happy with this but thought it was his only option. At this stage he was given no work to do and simply sat in a visitor’s chair for three months which he found very humiliating.
In March 1998, after union intervention, he was redirected back to Defence Plaza but not close to Mr Wynne. In April 1998 he was sent to see Davidson Trahair, psychologists, to work out a set of conditions and a communication agreement between himself and Mr Wynne. He said this was a "good move" and that management had woken up. However, Mr Wynne broke the agreement by passing his desk and making comments. Again, he said words to the effect "send them back to their own country" and laughed. Mr Korczak asserts that he kept to the terms of the agreement.
During this period Mr Korczak described an incident with a tape recorder which he considered to be taping him. The recorder had been placed in a bookshelf near his desk. There was a tape in the recorder but he did not check if the recorder worked. He took the recorder to Mr Rogers, the Personnel Manager, who said it was a joke. Mr Rogers denied recording him and took the tape recorder away.
Mr Korczak remained at Defence Plaza until he took a redundancy package in May or June 1998. He said that he took this package under pressure from Mr Rogers. He stated that both Mr Rogers and Mr Lake warned him that if he did not return to full-time work for a twelve-month period his superannuation and leave entitlements could be affected. He agreed, however, that every time redundancy packages were offered he had put his name on the list. He had done this 2 to 3 times. He said that in April or May 1998 Mr Rogers gave him information about the package but did not speak to him after he indicated he wanted to go. Mr Korczak said this amounted to pressure because it was an indication that he should leave. Also, the tape recorder incident "made him think". Overall, he considered the voluntary redundancy to amount to racial discrimination because in the global picture he had no future.
Mr Korczak said that he lost his family because of the harassment. Because of the work problems there was tension at home and he was asked to leave. He separated from his wife while he worked in Concord and agreed this was when the "stage 1" incidents occurred. He agreed that his wife's evidence could only relate to these incidents.
3.2 Evidence of Mrs Bozena Korczak
Mrs Korczak made a written statement that was tendered in evidence. She told the Commission that she had been with Mr Korczak for 25 years and had never seen him as depressed as he was in the last two years at the Department. She said he came home very tense and depressed and that their home situation became intolerable. She had to ask him to leave and he did so. His condition did not improve and he was hospitalised. He is now on a disability pension. Mrs Korczak said that her former husband had always been of sound mind and character. They were separated because of problems in the Department.
Mrs Korczak was cross-examined by telephone on her written statement. There was some suggestion that Mr Korczak had typed the statement for her. I accept that this is probably the case, however Mrs Korczak adopted this statement on oath and I have no reason to believe that it does not accurately reflect her experience.
Mrs Korczak said that she and her husband separated at the beginning of 1996 but she cannot recall the exact date. She has seen him since then because he visits their children. She has been worried about him in this period. She said that he sometimes told her of his work problems. She said that he told her that persons at work said that he came from a country where they eat grass.
She agreed that she only knew what Mr Korczak told her but she saw him depressed in a way he had not been before. She said that she had met some of her husband's colleagues and that she had been invited to Mr Lake's house.
4. EVIDENCE FOR THE RESPONDENT
4.1 Evidence of Mr Ken Wynne
Mr Wynne said he had worked for the respondent for 14 years. He worked with Mr Korczak at Concord and at Defence Plaza. At Concord Mr Korczak would come upstairs and tell him and his colleagues they would have to work downstairs. He told Mr Korczak to "nick off". He would also see Mr Korczak if he was in the room with Mr Lake or if he had to go downstairs to see Mr Lake.
Mr Wynne denied making racist remarks to Mr Korczak. He denied saying that Mr Korczak should go back to where he came from, he denied saying that he came from a country where people eat grass. He denied being abusive or harassing to Mr Korczak in the workplace and denied making comments about migrants to Mr McGoogan.
He denied that he had imitated Mr Korczak's accent. He had used the term "ho ho ho" as a greeting to another employee, of French origin, along with an imitation French accent. He said that this was the only person whose accent he imitated and that it was just a joke between him and the French employee and a couple of others.
Mr Wynne did say that he had asked Mr Korczak to repeat himself. He also said that he may have made comments about a blanket stop on immigration for 2-3 years so the country could get back onto its feet which Mr Korczak may have misconstrued. He made these comments at Defence Plaza on one, maybe two, occasions. He made these in the presence of Mr McGoogan, Mr Gibson, Mr Besant and Mr Lake.
Asked about the tearoom incident, Mr Wynne said it was a "downright lie" and that no such comments had been made. He said that he would not describe himself as a racist and he did not believe that Asian migrants should be sent back home.
In June 1995 Mr Wynne said that they moved to Defence Plaza and he was located in a cubicle next to Mr Korczak. He described their relationship as "normal everyday goings on". He described his relationship with Mr Gibson as having "ups and downs in the past".
In relation to the car incident he said he asked Mr Korczak for the access card two or three times and Mr Korczak said he did not know where it was. Mr Wynne said he complained to Mr Lloyd and called Mr Korczak a "bloody idiot". The card had been left in the car although they had been directed not to do so.
Mr Wynne thought the December 1995 complaint was about the car incident. There were no other incidents in 1996. He and Mr Korczak worked together and went to lunch together a couple of times. He visited Mr Korczak at home when they were still at Concord.
Mr Wynne said that he did not “fart” on Mr Korczak. He said he suffers from flatulence and always leaves the area in such situations. He said that Mr Korczak and other workers “farted” but not him.
Mr Wynne was shown paragraphs 4 and 5 of p.34 of the Referral Report and agreed that their contents were true. The first paragraph concerned an incident with the vehicles. The second involved an incident where Mr Wynne stated that he was the one who was being harassed. He said that on 23 January 1996 he received a nuisance phone call from Mr Korczak while he was at home on sick leave. This was repeated on other occasions when he was home on sick leave.
When Mr Korczak returned to Defence Plaza from Garden Island there was a communication agreement between them. Mr Korczak breached this on a number of occasions. Mr Wynne produced diary entries in March, April and May 1998 concerning Mr Korczak's behaviour.
4.2 Evidence of Mr Denis McGoogan
Mr McGoogan said he had been employed with the respondent for 28 years and was now a Technical Officer, Grade 3.
He said the first time he met Mr Korczak was when Mr Korczak came into his office. At that time, Mr Korczak was located in the main building and his office was just down the road. He recollects that Mr Korczak would come up from time to time to their office. Originally, his group was not part of Mr Lake's group but after redundancies they came under Mr Lake's control. Mr Korczak intimated that Mr McGoogan's group would move downstairs. He said that Mr Korczak was being "villainous" in saying that they would come under Mr Lake's watchful eye. He said that he resented this.
Mr McGoogan said he had known Mr Wynne for 28 years and that they were very friendly. He agreed that he was Mr Wynne's "best mate" at work.
He observed Mr Wynne and Mr Korczak's relationship to be "stormy" and recalls that they "had a go at each other". He did not recall the "eat grass" comments or comments about returning to his country either by himself or Mr Wynne. He does not think any comments could be construed as relating to Mr Korczak's race. Mr McGoogan denied that any racist comments were made. He said that Mr Wynne did call Mr Korczak a "bloody idiot" over the car incident. He does not recall Mr Wynne imitating Mr Korczak's accent.
He said his relationship with Mr Korczak was "quite good" and recalls a lunch where Mr Korczak related how he left Poland which he considered to be interesting and risky. He said, however, that there was a falling out concerning a trip to Amberley because he considered that Mr Korczak broke ranks by his willingness to go on the trip when others would not.
In relation to the car incident, he said that he saw Mr Wynne ask for the keys and access card and Mr Korczak said he did not know where the card was, even though he had used it last. A heated discussion ensued. In response to a question from me, Mr McGoogan said that he might have made a comment to Mr Korczak about the remote button on the car, but he could not recall being upset. He agreed that there was a problem with the parking in the QVB but was not aware of a problem with parking cars for which Mr Korczak was blamed.
In relation to the “farting”, Mr McGoogan said it was part of office banter. He once “farted” at Mr Korczak after the latter stuck something on his flag on his computer. He says Mr Korczak laughed at him and said "oh you dirty so and so" and ran down the hall laughing. Mr McGoogan agreed that there was a similar incident involving “farting” by other persons. He did not agree that he aimed at Mr Korczak's head.
Mr McGoogan described the "Queen poster" incident as an example of Mr Korczak continually defacing his poster and a flag that he kept on his computer. This was all part of office banter. He said that Mr Korczak engaged in jokes about his British heritage.
Mr McGoogan said that the sugar incident was preceded by an incident whereby Mr Korczak took his stapler and relabelled it with his own name. Mr McGoogan said that he had filled his sugar jar in the morning and came into the office to hear Mr Korczak say "sugar is up, sugar is up". He saw a plastic bag of sugar on Mr Korczak's desk but Mr Korczak denied taking the sugar. Mr McGoogan told Mr Lake that he would be making an official complaint about this. Mr Korczak was called into Mr Lloyd's office and admitted after about 20 minutes to taking the sugar.
Mr McGoogan said that small practical jokes did occur but that this incident was beyond a joke. When asked by Mr Peek if Mr Wynne was racist, he replied "no, not really". He said that Mr Wynne's general character was abrasive and abrupt and could be misconstrued.
4.3 Evidence of Mr Colin Besant
Mr Besant had been employed for seventeen and a half years at the Department. He is currently located at the Defence National Storage and Distribution Centre at Moorebank.
Initially he thought Mr Korczak was fairly friendly and they had fairly good rapport. He did not witness any altercations between Mr Korczak and Mr Wynne at Concord as they were in different buildings. He said that Mr Wynne did come to see Mr Lake and himself.
When they moved to Defence Plaza in late 1995, he sat to the immediate right of Mr Korczak. Mr Wynne sat opposite. Mr Lake's desk was close.
His relationship with Mr Korczak was then "fairly friendly" but it deteriorated after the gas cylinder incident. He had an altercation with Mr Korczak and told Mr Lake that he would only interact with Mr Korczak on work-related matters. He was not, however, offended at the Amberley incident.
He agreed that he was friendly with Mr Wynne and Mr McGoogan.
He said that the “farting” incident probably did occur but that it was not "aimed" at Mr Korczak. He said that it "went both ways".
He did observe that relations between Mr Korczak and Mr Wynne were not friendly but the interaction was caused by both of them. He said that there was no conduct directed at Mr Korczak's race or ethnicity.
Mr Besant denied that Mr Wynne imitated Mr Korczak's accent and laughed. He denied that Mr Wynne told him to go back to his own country and he denied that Mr Wynne made the "eat grass" comment. He denied that Mr Wynne said that Mr Korczak had taken an Australian's job.
He agreed that Mr Wynne spoke loudly to Mr Korczak, especially when the latter aggravated him. He also agreed that Mr Wynne may have pretended not to understand Mr Korczak and said that he, too, may have done that.
4.4 Evidence of Mr Charles Gibson
Mr Gibson commenced employment with the respondent in July 1981. He met Mr Korczak at Concord but only knew of him until the restructuring. He was originally down the road but then moved to the upper office. He would have to go downstairs when he had questions for Mr Lake. Mr Korczak came upstairs on occasion and there was some conversation between Mr Korczak and Mr Wynne in which he could detect some friction.
Mr Gibson said he did not hear any comments about coming from a country where people eat grass. However, he did hear some comments about the country Mr Korczak came from. He heard the term "Polack" or something like it, but there was nothing racist about it. He said that Mr Wynne made some comments like "You come from a shit country" but he was not sure if this was directed to Mr Korczak. He had, however, heard him use this type of language. Mr Wynne was quite aggressive. He had heard comments from Mr Wynne that people should return to their own country but not within the last 8 or 9 years; ie. not in Mr Korczak's time. He also heard Mr Wynne say that migrants took jobs that Australians should have. This was said in conversations with Mr Korczak "many years back".
He said that he believed that Mr Wynne was a racist person "towards Asian people". Mr Wynne may have made comments about 8 or 9 years ago but he stopped when his son married a Cambodian woman. It was a joke in the office that Mr Wynne's son married a Cambodian woman when he had made derogatory statements about Asians.
Mr Gibson said that Mr Wynne did not give him a hard time but he did find him aggressive and he tried to avoid him if possible. He said that Mr Wynne had not, to his knowledge, made derogatory comments about his family. He denied telling Mr Korczak that Mr Wynne had harassed him. He said that Mr Korczak told him that Mr Wynne was harassing him, but this was not because of his race.
He was not aware of the tearoom incident and Mr Wynne did not make comments of this nature to him directly.
At Defence Plaza, Mr Gibson said that Mr Korczak was "abused pretty badly" by Mr Wynne but that this was not because of his race. He said he would often see Mr Wynne come in, stand close and abuse Mr Korczak. He called him "ignorant" in a loud voice. He said this could be "quite ugly". He said Mr Wynne "eyeballed" Mr Korczak in meetings and chewed in an aggressive manner. At meetings when the supervisor was not watching Mr Wynne would flick minty papers at Mr Korczak. He said that there was "continual verbal abuse" and that it was obvious that "they didn't like him". He said that this conduct was not because of Mr Korczak's race.
Mr Wynne had called him "Polack" a couple of times but not in the tone of the comments about being "ignorant". This comment was made in a normal conversational tone and nothing nasty was meant.
Mr Gibson opined that Mr Korczak was being harassed because his complaint affected the promotional chances of Mr Lloyd. Mr Lloyd, Mr Wynne and Mr Besant were close friends. He said that Mr Lloyd "had it in for" Mr Korczak. He also said that matters got worse after the gas cylinder incident.
In relation to the “farting” incidents, Mr Gibson said he had seen Mr McGoogan, Mr Wynne and Mr Besant doing that to Mr Korczak. On one occasion, Mr Wynne walked up to Mr Korczak and farted right at the back of his head. Mr Korczak's body language was "I'll punch you".
Mr Gibson said that he did not think that Mr Korczak's conduct could be described as provocative and he was always very polite and well mannered. He said the sugar incident was Mr Korczak's way of getting back at them because they were always going on about something petty. In relation to the incident about the Queen's picture he said he thought Mr Korczak stuck a little flag or something on the picture.
Mr Gibson said that Mr Korczak spoke to him before he went on sick leave and said, "You know Wynne is harassing me". He said that he told Mr Korczak that he saw Mr Wynne “fart” on him once. Mr Korczak told him that he had made a complaint.
Mr Gibson told the Commission that he had himself experienced some harassment from Mr Wynne who picked on him over trivial things. He had made a complaint about Mr Wynne and Mr Wynne had made a complaint back against him. He thought the respondent did not act properly to resolve the matter. He said that he told Mr Korczak at Defence Plaza that the harassment would take some of the pressure off him.
4.5 Evidence of Mr Terry Lake
Mr Lake adopted as accurate his statement at pages 23 to 27 of the Referral Report. In essence his evidence was as follows.
Mr Lake retired from the respondent in 1998. Previously, he had been the head of section in the Quality Assurance Group. He said he had put much time and energy into assisting Mr Korczak who had discussed his difficulties with Mr Wynne with him. He told the Commission that it was not the case that he took no action and that it was his policy not to let disturbances be overlooked. In relation to two incidents referred to by Mr Korczak, he was not present. He had also placed Mr Wynne and Mr Korczak in separate workstations at Defence Plaza to reduce the friction. He said that it was possible that things went on in the workstations which he did not hear.
In addition, management facilitated the transfer of Mr Besant after the access card incident (referred to earlier in the evidence) and transferred Mr Wynne to another area on a temporary basis. He had also brought his staff together on two occasions (8 December 1995 and November 1996) to discuss teamwork because he had observed friction.
He said that relations between Mr Korczak and Mr Lloyd were poor although it picked up at Defence Plaza.
He had no recollection of any occasion where statements were made of a racial nature. He did not observe Mr Wynne imitating Mr Korczak's accent nor the "eat grass" comment. He did not recall Mr Wynne saying that Mr Korczak had taken a job an Australian should have. He said that he could "imagine" Mr Wynne saying that migrants should go back to their own countries.
However, Mr Lake said that there was hostility and that “hard words and demeaning comments” were made by Mr Wynne. He observed Mr Wynne talking loudly and he observed Mr Wynne repeat sentences in an abrasive manner. Mr Korczak did voice his concern to him about the relationship between himself and Mr Wynne and Mr Besant but he never said that they were after him because of his race or origin. He thought the friction was about personalities. He said Mr Wynne is insensitive and abrasive and Mr Korczak is a sensitive person. He said Mr Besant was partisan to Mr Wynne so it appeared as if they ganged up on Mr Korczak.
Mr Lake had no recollection of the tearoom incident.
The minute concerning harassment which was issued at Concord, was about calendars displayed but it was put in general terms to cover situations like that of Mr Korczak.
In relation to the December 1995 car access card incident, Mr Lake said that Mr Korczak had not kept the folder as appropriate and when approached by Mr Wynne became deliberately obtuse. He was on leave at the time but thinks that Mr Korczak made a written complaint.
In the months to December 1996 there was some "good humour and friendly banter" involving “farting”. Neither he nor Mr Lloyd was in attendance but he was informed that "Jack was a laughing and willing participant". Had he been present he would have stopped this conduct.
Mr Lake said that Mr Korczak stirred Mr McGoogan about the flag and defaced the poster of the Queen. He said he told Mr Korczak that this was deliberately provocative and not to do it.
After returning from Christmas leave in 1997 he found out about the latest incident with Mr Korczak and Mr Wynne concerning "who uses what car" and was disappointed because it was so soon after the teambuilding exercise in November 1996.
Mr Lake said the tape recorder incident was "absolutely stupid" and that he had spoken to Mr Rogers who had put it there. He said that this was provoking a situation. His evidence was that the tape did not work.
4.6 Evidence of Mr John Rogers
Mr Rogers is the Executive Officer of the Defence Acquisition Regional Office in NSW and looks after Corporate Services. He has been in this position for six and a half to seven years. He said that the Quality Assurance Team moved to Defence Plaza from Concord on 25 June 1995.
His role in the investigation of employee complaints is to advise the Regional Director, appoint an investigator and ensure a full investigation. In December 1995 he was aware of a complaint by a person who had had gender reassignment surgery which had been actioned by the circulation of a minute by Mr Jenkins reminding all staff of their EEO responsibilities.
He was aware of a complaint by Mr Korczak in December 1995. He advised the Regional Director and appointed Mr Shallis to investigate. He did not think the complaint was in writing and he does not recollect that the complaint was race related. He said that he was certain that no issues of race discrimination were raised. He thought it had to do with Mr Wynne acting inappropriately and calling Mr Korczak stupid. He recalled that it had "something to do with cars". The outcome was a report but Mr Korczak asked for the investigation to be stopped because he was satisfied.
In late 1996 he became aware of a problem between Mr Korczak and Mr Wynne. This involved the gas cylinder incident. There was a further written complaint in late 1996. In 1997 Mr Korczak complained again and Ms Andric was appointed as investigator. Mr Korczak also made a Comcare claim which he forwarded on to the compensation section. Mr Rogers said that he did not think this complaint raised anything to do with race discrimination. He said it had something to do with vehicles and allegations of being called "stupid".
Mr Rogers said that Mr Korczak was on sick leave in early 1997 and returned in about April. Mr Korczak asked if he could be found a stress-free position but declined to go to Moorebank. Mr Rogers offered him Garden Island and he was located there. Mr Korczak took more sick leave and long service leave, even when working 20 hours per week. Mr Rogers thought Garden Island was appropriate for Mr Korczak because of his mechanical skills and because he was "safe out of the way". He did consider moving Mr Wynne but thought he did not have the mechanical skills necessary for Garden Island.
Mr Rogers said that the complainant made requests to return to Defence Plaza. He consulted with “compensation” and decided to place Mr Wynne and Mr Korczak on separate floors. This was early 1998. They also were to utilise the employee assistance program for mediation and they came up with an agreement. There was, however, conflict between the two men in 1998. Mr Wynne complained that Mr Korczak was staring at him.
Mr Rogers told the Commission that Mr Korczak had expressed interest in a voluntary redundancy every year since 1994. He had the same conversation with Mr Korczak in relation to redundancy as he had with everyone; that is, a conversation about entitlements, counselling and so on. There was some discussion as to the consequences for his entitlements of Mr Korczak having worked part time. He ascertained that the full redundancy rate was applicable but said part time work was a bit of a grey area.
There were about 70 redundancies at that time as part of a redundancy program stemming from a Defence Efficiency Review. Mr Korczak was in no different position to anyone else. Mr Rogers denied placing any pressure on Mr Korczak.
In relation to the tape recorder incident, Mr Rogers said that it did not work and just floated around the workplace where it would "appear" in workstations. He said he was responsible for moving the tape recorder and had put it in Mr Lake's office as a "bit of fun". He was not sure how it got into Mr Korczak's workstation, saying that it was "intended for the next workstation" and he was "unclear if that workstation was used at the time". In response to a question from me, Mr Rogers said he had not considered the impact such a thing might have on a person from behind the iron curtain who had been on stress leave.
5. MEDICAL EVIDENCE
No medical witnesses were called, however the parties tendered by consent a bundle of medical reports. I do not find it necessary to go into these reports in any detail, however, there is some dispute between the medical practitioners as to Mr Korczak's correct diagnosis and prognosis.
6. THE SUBMISSIONS OF THE PARTIES
6.1 The complainant's submissions
Mr Korczak's case against the Department is essentially that staff members, largely Mr Wynne but also Mr McGoogan and Mr Besant, discriminated against him on the ground of his race and the Department did not take action to address it. Further, he asserts that his acceptance of redundancy was as a result of the alleged discrimination.
He seeks damages, an apology and reinstatement.
6.2 The respondent's submissions
The respondent through its solicitor, Mr Peek, provided helpful submissions as to the legal issues involved in this case. Mr Peek conducted this case on behalf of his client in a most appropriate manner given that Mr Korczak was not represented. The manner of his representation and his submissions were of considerable assistance to the Commission.
The respondent submitted that there were three possible avenues by which Mr Korczak could proceed:
a. A general finding of race discrimination under section 9 of the RDA
Mr Peek conceded that access to employment was a field of public life.
b. A specific finding under section 15 of the RDA
The respondent submitted that there was no factual basis on which a finding under this section could be made. Section 15(1)(a) and (b) were not applicable. It submitted that subsection (b) does not refer to "quiet enjoyment" but rather to conditions of employment such as pay or promotion. There was no suggestion that there was any change in conditions. Section 15(1)(c) may be applicable in relation to the voluntary redundancy package but could not factually be made out.
c. A finding under section 18C of the RDA
The respondent queried whether the workplace was a "public place" within the meaning of the legislation as the public have no right of access. Employment might be a public event, but the intention of the legislation is to limit use of the section to public places - ie. the test is geographic.
It was submitted that, in order for Mr Korczak to succeed, there must be an aspect of race involved. Comments must have been directed at Mr Korczak on the basis of his race.
It was further submitted that there was a conflict of evidence and that it is open to me to find no conduct was racially motivated.
As to credit, the respondent submitted that the Commission should prefer the respondent's witnesses to Mr Korczak. It was submitted that Mr Korczak's evidence contains vague assertions, no specific details of the racial aspects and he did not complain to the Department of the racial aspects. In relation to the "eat grass" comment, none of the respondent's witnesses are familiar with this and there is some degree of invention involved.
It was submitted that there is evidence that Mr Korczak's fellow employees were motivated by factors other than race and evidence of Mr Korczak's contribution to this conduct.
As to the voluntary redundancy, it is submitted that the Commission should find Mr Korczak's allegations unsubstantiated. There is no evidence that Mr Korczak did anything other than take a redundancy on a voluntary basis.
As to the medical evidence, Mr Peek submitted that it is only as good as the history given by Mr Korczak. It was submitted that there are major inconsistencies in the evidence and the histories given. For example, Mr Korczak told Dr Lovell that there had been problems for nine years but this was resiled from in cross-examination. It is up to the Commission to make factual findings concerning causation.
In relation to vicarious liability, the Commission should be satisfied that the Department took all reasonable steps to prevent its employees from doing the alleged acts, including:
The respondent submitted that it was not until January 1997 that it was aware that there was a complaint of racial discrimination.
7. DISCUSSION OF EVIDENCE AND FINDINGS OF FACT
7.1 General
I have had the benefit of having the witnesses give evidence before me. I note that there is considerable variation between their accounts of events and in some instances I have had to prefer the evidence of some witnesses over that of others.
Although the respondent submits that Mr Korczak's evidence was vague and that this goes to his credit, I do not consider Mr Korczak's evidence to be generally suspect for this reason. I do, however, note that Mr Korczak was vague about dates and times and was unable to give clear evidence as to the sequence of events. While I do not consider that this means these events did not occur, the lack of clarity must diminish the weight that I can ascribe to Mr Korczak's evidence concerning them.
I did not find Mr Wynne to be an impressive witness. In particular, I find his unequivocal denial of the “farting” incident to be at odds with the evidence of most of the other witnesses, including Mr Besant. His evidence was characterised by an attempt to place his actions in the best possible light.
On the other hand, I found both Mr Lake and Mr Gibson to be impressive witnesses and I prefer their evidence to that of Mr Wynne where there is conflict.
7.2 Findings of fact
On the basis of the evidence before me I make the following findings of fact:
8. FINDINGS ON THE LAW
8.1 Application of section 9 of the RDA
The respondent conceded that access to employment was a field of public life for the purpose of this section. It was thus not necessary to consider argument on this issue. However, I note that I agree with this view. Whilst I do not, here, consider the question in detail, some of the comments made in regard to section 18A below have relevance.
8.2 Application of section 15 of the RDA
The respondent asserts in its submissions that this section cannot apply because quiet enjoyment in employment is not included in any of the subparagraphs of section 15(1). I do not share this view.Subparagraph (b) refers to "terms of employment" and "conditions of work". Whilst I agree that "terms of employment" is more related to such issues as working hours, salaries and other benefits etc, in my view "conditions of work" includes quiet enjoyment in employment, or being able to carry out the tasks for which one is employed without harassment. To find that this was not the case would narrow the interpretation of this provision and, because the Act is beneficial legislation, it should be interpreted more broadly.
8.3 Application of section 18C of the RDA
Mr Peek argued that section 18C was not intended to apply to the workplace and that there is a geographical limitation as to its scope. I do not accept this submission.
The legislative provisions introduced by the Racial Hatred Act 1995 (Cth) and which now form Part IIA to the RDA apply to acts which are committed "otherwise than in private". Under section 18C(2) an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
It is evident that the RDA does not require the relevant acts to have occurred in "public" or in a "public place". What is required is that the acts occur "otherwise than in private". Section 18C(2) indicates circumstances where certain conduct may be taken to occur "otherwise than in private". However, the section is not exhaustive, it simply indicates some examples of cases which may fall within the definition and it does not exclude other circumstances which a person may argue fall within the meaning of "otherwise than in private".
In coming to this view I have had regard to two matters. The first is the context in which Part IIA is embedded. The second is the terms of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination ("ICERD") which provides the foundation for the enactment of Part IIA.
Dealing with the first matter, it is a rule of statutory interpretation that I must have regard to the whole of the RDA in determining the meaning of an act occurring "otherwise than in private". That is, I must attempt to read the Act as a whole and to interpret words and phrases in a consistent manner and in their context (see K&S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd [1985] HCA 48; (1985) 60 ALR 509, at 514; Pearce and Geddes, Statutory Interpretation in Australia, Butterworths, 4th edition, 1996, at 85-7).
Accordingly, light may be shed on the meaning of "otherwise than in private" in section 18C by considering references to a "field of public life" in section 9 of the RDA.
Section 9 is a central section of the RDA. This section declares certain conduct, occurring in particular fields of life, to be unlawful. These fields are described in section 9 as "political, economic, social, cultural or any other field of public life" (emphasis added). It is clear from this description that the political, economic, social and cultural fields are fields of "public life". The rights which arise in the fields of public life are those referred to in Article 5 of the ICERD (see section 9(2) of the RDA).
These rights include: rights in relation to the administration of justice, the right to security from State violence, rights to political participation and the conduct of public affairs, civil rights including the right to freedom of movement, the right to work, the right to join trade unions, the rights to housing, public health and medical care and social services, the right to education and training and the right of access to places intended for the general public. In particular, Article 5(e) refers to economic rights including the right to work and the right to just and favourable conditions of employment.
It is clear, then, that the context of the RDA utilises a broad concept of what constitutes a field of "public life". Public life includes employment situations. In these circumstances, comments made in the workplace fall within the sphere of "public life" defined by section 9 of the RDA and Article 5 of ICERD. As noted above, I must read the RDA as a whole; that is, I must read "public life" in section 9 consistently with the phrase "otherwise than in private" in section 18C.
The second matter referred to above is the impact of Article 4 of the ICERD. This Article requires State parties to take steps to eliminate incitement to acts of discrimination. Article 4 requires that regard be had to the rights set out in Article 5. Thus, the basis on which Part IIA of the RDA is enacted makes specific reference to the type of rights set out in Article 5. As noted above, these are matters that include employment. Thus, section 18C must be interpreted in light of Article 4 (and its specific reference to Article 5). In particular, the meaning of the phrase "otherwise than in private" must be interpreted in this light. In my view this provides an additional reason to give the phrase "otherwise than in private" a broad meaning in line with the fields of public life set out in Article 5 of ICERD.
For the above reasons, I do not accept the argument of the respondent that section 18C does not refer to conduct in the course of employment
8.4 Was there a nexus between the conduct and Mr Korczak's race or national origin?
The central legal question in relation to section 18C and section 15 is essentially this: was there the appropriate nexus between the conduct of Mr Wynne and his colleagues and Mr Korczak's race or national origin? In relation to section 15, the question is whether there is certain conduct of an employer "by reason of" race or national origin. In relation to section 18C, the question is whether the conduct is reasonably likely to offend, insult, humiliate or intimidate a person "because of" their race or national origin. Despite these different formulations, the question is basically one of whether a relevant connection has been established between the conduct I have found has occurred and Mr Korczak's race or national origin.
Having considered the evidence before me, and having regard to the findings of fact referred to in section 7 above, I am unable to conclude that the relevant nexus has been established.
I have no doubt that Mr Wynne's conduct was reasonably likely to offend or humiliate Mr Korczak. Indeed, I am satisfied that this is what it was intended to do. I also have no doubt that the conduct of Mr Wynne and his group of friends was directed at Mr Korczak and was abusive and degrading. This conduct was puerile in the extreme. The evidence of persons "ganging up" and retaliating at persons they regarded as "dobbing" have more relevance to the schoolyard than the actions of officers of the Department of Defence. I have no difficulty at all in concluding that the conduct of which Mr Korczak complains was entirely inappropriate in a workplace and hardly conducive to a productive and safe working environment.
I also consider that race was a factor in the work environment. This may have stemmed from Mr Wynne's views about migrants or Mr Korczak's accent may have provided the opportunity for abuse. I am cognisant of the terms of section 18 of the RDA that would allow me to make a finding of racial discrimination if one of the reasons for the conduct is the race of the person involved, regardless of whether there are other reasons. Nevertheless, an allegation of racial discrimination is an extremely serious one and I must have sufficient evidence before me of the appropriate nexus between the conduct and the complainant's race before I can make a finding that race discrimination has occurred. The onus is on the complainant to make out his case and to demonstrate to me the relevant nexus between the conduct that he alleges and his race or national origin. The complainant bears the burden of proving his case on the balance of probabilities.
After long and careful consideration I have come to the conclusion that Mr Korczak has not established that the conduct he alleges could be said to have occurred "by reason of" or "because of" his race or national origin. I am simply unable to find that the conduct of Mr Wynne and his colleagues was linked to Mr Korczak's race or national origin, rather than being a result of personality differences and a juvenile gang mentality.
Consequently, I am unable to find that sections 15 or 18C of the RDA have been breached by reason of the conduct of Mr Wynne or his colleagues.
In relation to section 9 of the RDA, I must take into account the decision of Weinberg J in Macedonian Teachers Association of Victoria Inc v Human Rights and Equal Opportunity Commission and anor, 21 December 1998, unreported, Federal Court. This decision was upheld by the Full Federal Court in State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287. Essentially, Weinberg J held that the "based on" test set out in section 9 does not require the same nexus as that which I have outlined above as required in respect of sections 15 and 18C. His Honour says that “the phrase “based on” in section 9(1) of the Act should be construed as encompassing a broader, non-necessarily causative, relationship expressed in the phrase “by reference to” (at p.28).
In my view, however, section 9, the more general section, cannot apply to situations covered by sections 15 and 18C dealing with employment and racial vilification. If it could, situations to which the more specific sections applied could fail the nexus test described above, but succeed under the broader general provision. Such double jeopardy for respondents could surely not have been the intention of Parliament. This is supported by the expressum facit cessare tacitum maxim; that is, where a particular procedure is designated to achieve something, other procedures are thereby excluded. This principle is described in Anthony Horden and Sons v Amalgamated Clothing and Allied Trades Union [1932] HCA 9; (1932) 47 CLR 1 at 7 as follows: "where the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power". Whilst these provisions of the RDA are not the conferral of a power on a decision maker but rather the conferral of a right on a person, this principle and the principle of expressio unius est exclusion alterius of which it is a variant seem to me to be applicable to this situation as well.
In any event, even if I was to have found that the conduct of Mr Wynne and his colleagues could amount to discrimination under the RDA, I would be of the view that there is no vicarious liability on the Department.
It is not entirely clear when the Department became aware that there was a racial component to Mr Korczak's complaint. I have found that they became aware of it on 16 January 1997 when Mr Korczak complained in writing of Mr Wynne's "racist philosophy". I note that at that time Mr Korczak did not expressly complain about racist comments directed towards him, only a more general allegation of Mr Wynne holding a particular philosophy. The Department appears to have investigated Mr Korczak's various complaints as general complaints of harassment. Ms Andric did, however, raise the question of racism in her interview with Mr Wynne (p.35 of Exhibit 1).
In light of the above, I am of the view that the steps taken by the Department to investigate Mr Korczak's complaints, the memorandum circulated concerning harassment, the policies promulgated concerning harassment and grievances (see pages 11-22 of Exhibit 1), the teambuilding exercises, the attempts of Mr Lake to defuse the situation, and the moving of Mr Korczak and Mr Wynne are sufficient to find that the Department took "all reasonable steps" to prevent the acts. While the RDA requires the Department to be vigilant for conduct which may be discriminatory and while it clearly requires proactive and preventative steps to be taken, the RDA does not require perfection, only "reasonableness". Although I regard this standard as a high one to meet (see the standard required in Evans v Lee and anor (1996) EOC 92-822 in the context of the Sex Discrimination Act 1984 (Cth)) I find that the Department has met the standard of reasonableness required by the RDA.
9. CONCLUSION
For the reasons given above, the complaint is dismissed.
I reiterate at this point that I consider conduct of the kind described by Mr Korczak, while perhaps not falling within the four corners of the RDA, to be entirely inappropriate. I have no doubt that Mr Korczak has suffered enormously at the hands of Mr Wynne and his colleagues and I do not wish my finding dismissing this complaint to in any way constitute an endorsement of the conduct complained of by Mr Korczak.
DATED THIS SIXTEENTH DAY OF DECEMBER 1999
________________________________
Graeme Innes AM
Inquiry
Commissioner
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