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Human Rights and Equal Opportunity Commission |
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Sex Discrimination Act 1984 (Cth)
Matter No H99/32
Between:
Lorraine Smith
Complainant
And
Respondent
REASONS FOR DECISION
OF INQUIRY COMMISSIONER GRAEME INNES AM
Date of Decision: 31 January 2000
Date of Hearing: 1 June 1999, 19 July 1999
Location of Hearing: Sydney
Appearances: Greg Moin, solicitor, for the complainant
Geoffrey McCarthy of the Australian Government Solicitor for the respondent
1. INTRODUCTION
On 4 November 1997 Ms Lorraine Smith lodged a complaint with the Human Rights and Equal Opportunity Commission (“the Commission”) alleging that she had been discriminated against on the grounds of her sex, marital status and pregnancy, in breach of the Sex Discrimination Act 1984 (Cth) (“the Act”) as amended.
The complaint stated that in April 1997 Ms Smith applied for a position as a part time director with the Red Meat Producer Corporation. Ms Smith claims she was discriminated against on the grounds of her sex, marital status and pregnancy by the interview selection panel in the way it handled her application.
Ms Smith claims that during an interview on 24 June 1997 she was asked a series of discriminatory questions by certain panel members. Ms Smith was unsuccessful in her application and alleges that the decision not to appoint her to one of the positions was based on her sex, marital status and pregnancy.
Following investigation of the complaint by the Sex Discrimination Commissioner, attempts at conciliation were unsuccessful, and the complaint was referred to the Commission for determination on 25 January 1999.
A hearing took place in Sydney before me on 1 June 1999 and 19 July 1999. The following constitutes my decision in relation to that hearing.
2. LEGISLATIVE PROVISIONS
The relevant provisions of the Act are sections 5, 6, 7, 8, 14 and 27. These sections are set out below:
5 Sex discrimination
(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.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
5"> 6 Discrimination on the ground of marital status
(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 marital status of the aggrieved person if, by reason of:
(a) the marital status of the aggrieved person; or
(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the marital status 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 a different marital status.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the marital status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital status as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
5"> 7 Discrimination on the ground of pregnancy or potential pregnancy
(1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:
(a) the aggrieved woman’s pregnancy or potential pregnancy; or
(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
(2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant.
(3) This section has effect subject to sections 7B and 7D.
5"> 8 Act done for 2 or more reasons
A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
14 Discrimination in employment or in superannuation
(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.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
(3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.
(4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex or marital status of the member or that other person.
(5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund.
(6) In this section:
member, in relation to a superannuation fund, includes a person who has been a member of the fund at any time.
27 Application forms etc.
(1) Where, by virtue of a provision of Division 1 or this Division, it would be unlawful, in particular circumstances, for a person to discriminate against another person, on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy, in doing a particular act, it is unlawful for the first-mentioned person to request or require the other person to provide, in connection with or for the purposes of the doing of the act, information (whether by way of completing a form or otherwise) that persons of the opposite sex or of a different marital status, or persons who are not pregnant or potentially pregnant, as the case requires, would not, in circumstances that are the same or not materially different, be requested or required to provide.
(2) Nothing in subsection (1) renders it unlawful for a person to request or require:
(a) a person of a particular sex to provide information concerning such part of the last-mentioned person’s medical history as relates to medical conditions that affect persons of that sex only; or
(b) a person who is pregnant to provide medical information concerning the pregnancy.
(3) This section binds the Crown in right of a State.
3. THE EVIDENCE
The Red Meat Producer Corporation is a corporation established by the Minister for Primary Industries and Energy following a major restructure in the red meat industry. It replaced the Australian Meat and Livestock Corporation and the Red Meat Research Corporation. Its functions, as an industry-funded body, are to oversee the operation of the meat and livestock industry in Australia. It was established in 1997 and a selection committee, the Meat Industry Selection Committee (“the Committee”), was nominated by the Minister to choose its first Board of Directors (“the Board”). These positions were advertised throughout Australia, and the Committee embarked on a culling process to determine who it would interview.
Members of the Committee were not employees of the Commonwealth, and there is potentially an issue as to whether the appointment of the Board was an action of the Commonwealth. However, the respondent did not dispute the fact that the Committee was acting on its behalf, and that appointment to the Board was employment by the Commonwealth for the purpose of the Act. I have therefore not considered the law on these issues.
The respondent provided much evidence about both the initial cull and the final selection process. As with any national body, whilst the Committee strove to appoint directors who were well qualified to carry out the tasks required, geography and State boundaries, as well as representation from various industry sectors, were factors for consideration. The selection was not finalised for some time after the interviews because of these factors, as well as the unavailability of several nominated candidates. It is not necessary to set out in full the details of the process, as they are not disputed by the complainant, and do not impact on the decisions which I have to make.
It is relevant to note that in the initial culling process the complainant was not placed in the top category of candidates. However, it was decided that she was worthy of interview. This fact is important in itself, but is also worthy of note because that Committee decision was made prior to the interview and the alleged discriminatory questions.
Seven women and twenty three men were interviewed for ten Board positions. Of the ten nominated by the Committee for appointment, one was a woman and nine were men. At the conclusion of the initial round of interviews, Ms Smith was short-listed as one of the twelve best candidates of those interviewed. At this point, eight were unanimously supported for appointment, and the final two positions were in contention. Further searches and interviews were then conducted. The respondent claims that the Committee concluded, after the completion of these further processes, that Ms Smith did not have the depth of meat industry experience demonstrated by the two other candidates who were appointed.
The key issues for determination in this decision are whether the questions alleged to have been asked were asked, and if so, whether the asking of such questions is in breach of the Act. Further, it is necessary to determine whether Ms Smith's sex, marital status and/or pregnancy played a role in the Committee's decision.
3.2 Evidence for the complainant
3.2.1 Lorraine Smith's evidence
From her own evidence, supported by documents included in the Referral Report, Ms Smith has clearly had a great deal of experience in the raising of livestock for meat production particularly, and in agriculture generally. As well as managing properties herself she has been involved in beef marketing co-operatives, university tutoring in the agriculture area, and the management of a tourism business.
Ms Smith stated that she had experience in about five of the seven areas indicated as relevant for selection. She stated that she had set these out in her application. She indicated that she put a great deal of effort into her preparation for the interview.
The interview, which took place at the Qantas Club in Sydney, was conducted by six men who were members of the Committee. Also present were representatives of the consultancy company which had administered the selection process, Lucas Partners Pty Ltd, and a representative of the Department of Primary Industries and Energy (now the Department of Agriculture, Fisheries and Forestry).
Ms Smith agreed that, as expected, she was asked a number of technical questions relating to the meat and livestock industry. She stated that about half way through the interview she was asked if she was married, and when she answered in the affirmative was asked why she had lied and left this off her application. She stated that her reply was that it was not relevant.
She then stated that she was asked if she had any children, and when she again answered in the affirmative, she was advised that this was a demanding position which would involve much travel. It was suggested to her that this may be a conflict for her, to which she replied that she had a supportive husband, and that this would not be a problem.
Ms Smith asserts that one of the Committee members indicated that he had problems employing young people with children, and that she was shocked and angry that this was his view and that he had expressed it.
Ms Smith stated that Peter Lanham, the senior representative of Lucas Partners, indicated that the questions relating to marital status were irrelevant, and that she did not have to answer them.
However, members of the Committee continued to ask similar questions.
The complainant felt that there were about half a dozen questions which did not relate to industry issues. She attempted to answer them, and felt that they constituted about twenty minutes of the interview time. She agreed that the interview had taken 45 minutes to an hour.
Ms Smith stated that the questions about her personal and family life caused her to feel uncomfortable. She said that she had been trying to focus the discussion on industry issues. She said that the non-industry-related questions affected her confidence, and made it hard for her to keep her focus.
Ms Smith stated that after the interview Fiona Lavan, the other representative of Lucas Partners, showed her out of the room. She stated that Ms Lavan expressed her concern about the questions which had been asked, and indicated that other applicants had not been asked such questions. Ms Smith stated that Ms Lavan commented that such questions made her feel like they were back in the ‘60s.
Ms Smith stated that at the time of the interview she was seven months pregnant. However, she did not say that she mentioned this at the interview. During cross-examination she agreed that she did not know if any of the Committee were aware of her pregnancy.
Ms Smith asserted that because the whole interview was tainted she did not have the opportunity to perform at her best. Further, she asserted that the Committee’s perception of her was tainted. She accepted that there may have been better qualified applicants, but because the Committee were taking her sex, marital status and pregnancy into account she will never know if she was unsuccessful as a result of these factors, or because she was not one of the best ten applicants.
Ms Smith stated that before becoming aware of the outcome of the selection process she had deferred her masters studies.
She stated that following advice of the result she had had difficulty sleeping- she kept waking up feeling angry, and going over the interview in her head. She said that she felt anxious all the time, and a sense of hopelessness about where the industry was going. She spoke to her doctor in Armidale about this, and he gave her a series of relaxation tapes.
Ms Smith and her family moved from Armidale to Nowra and she applied for a promotion in the company for which she was working there. This was the first job interview she had had since her experience applying for the Board position, and she found the process very difficult. She had flashbacks about the previous interview, felt claustrophobic and started sweating. It became so serious that she consulted a psychologist in Nowra.
Ms Smith provided a report from this psychologist, Anne-Marie Braund, dated 28 May 1999. It indicated that Ms Smith had attended for counselling on 27 March 1999 and 28 May 1999 and had expressed a need for help in rebuilding her self esteem and confidence. It indicated that Ms Smith had reported flashbacks of the 1997 interview at a recent interview and had left work feeling emotionally upset, angry and sad. Ms Braund’s opinion was that Ms Smith’s confidence and self esteem had been lowered by the trauma associated with the interview and she recommended long-term counselling to enable Ms Smith to proceed with a career path.
Ms Smith stated that she had abandoned her whole career path in agriculture, and that she had left the Armidale property in May 1998.
3.2.2 Wayne Upton’s evidence
The complainant called one of her referees to support her claim. Wayne Upton, an agricultural consultant specialising in beef genetics, gave evidence that he had known Ms Smith personally and professionally for about twelve years.
He spoke very positively of Ms Smith and "found it ludicrous" that he would have given a negative message when speaking by phone to Ms Lavan of Lucas Partners. He commented that it would be in his interests to have a colleague such as Ms Smith appointed to a position such as this.
He confirmed that he had supported her appointment as a Board member because of her energy, experience, and ability to "look outside the square". He agreed that he may have commented on her many commitments, but that this was in a positive sense when discussing her diverse involvements.
3.3 Evidence for the respondent
3.3.1 John Wyld’s evidence
John Wyld, a cattle producer from Victoria and a member of the Committee, gave evidence for the respondent. He explained that he had been President of the Cattle Council of Australia at the time he was asked to be on the Committee.
Mr Wyld detailed the culling process, and indicated that Ms Smith, although interviewed for the position, had not been placed in the first rank of contenders.
Mr Wyld stated that Ms Smith appeared very competent and articulate at the interview. He recalled her stating that this position was something to which she had aspired all her working life. However, he stated that he was concerned about whether "her claims had substance, and whether she could work on the ground in these areas".
Mr Wyld indicated that the questions to applicants did follow a pattern, but that this was not rigid as it depended on the responses of each candidate.
He indicated that the Chair of the Committee, Mr Maurice Binstead, had explained the onerous nature of the job, and that it would require travel around Australia and overseas. He said that 50 days a year had been set as the commitment, and that this time commitment was explored with all of the applicants. He stated that the Committee was concerned about whether Ms Smith would have this time available.
Mr Wyld stated that one Committee member asked Ms Smith "if she had any help" and whether she was married. Mr Wyld recalled Ms Smith saying that she thought that this was irrelevant. He agreed that Ms Smith was asked why she had not put this in her application, and that she stated she didn't think it was relevant to the job. He further agreed that Ms Smith was asked whether she could manage the time and travel commitments.
Mr Wyld agreed that these questions were only asked of Ms Smith. He stated that, although she answered the questions "quickly and promptly", it was clear from her body language that she was not comfortable with these questions. He stated that these questions were towards the end of the interview, and would have taken about 5-6 minutes.
Mr Wyld stated that he was not happy with these questions, and he felt that they could have been asked in a different way. He stated that after Ms Smith's interview the Chair, supported by Mr Lanham, had stated that the questions were inappropriate, and that the Committee should not take cognisance of the answers.
Mr Wyld stated that he had not been aware of Ms Smith's pregnancy at the time of the interview or during the selection process. He said that he had only become aware of it as a result of her complaint.
Mr Wyld explained the process once the interviews were completed. He said that the Committee was unanimous in its support for the first eight candidates, but needed further discussion over the last two positions. He detailed the process of discussion, further interviews, and withdrawals which had taken place before the Board was appointed by the Minister.
He noted that Ms Smith had been one of three applicants considered for the last position, but that she had been unsuccessful. He explained that the factors in this decision were that there were already five people from NSW, that she was less experienced than the other applicants, and that her reference checks had not turned out well.
Mr Wyld gave evidence that the Committee had not received formal training as to the way in which the interviews should be conducted. He noted, however, that they had been reminded by the Minister about their duties with respect to gender bias.
3.3.2 Rodney Polkinghorne’s evidence
Mr Polkinghorne stated that he was a beef farmer from Victoria, very experienced in researching the meat grading area of the industry. He has also had a great deal of experience in the establishment and running of feed lots.
Mr Polkinghorne agreed that at interview Ms Smith had presented well, and was obviously very enthusiastic about the industry with a strong consumer focus. However, Mr Polkinghorne was worried about Ms Smith's hands-on experience, and whether her presentation had substance.
Mr Polkinghorne agreed that the time commitment was canvassed with all applicants, and that Ms Smith was asked how she could meet this in the context of her other responsibilities. He agreed that she was asked if she was married and whether she had a family, and that she told the Committee she had a husband and a child. He stated that the question seemed valid to him, as it related to the work carried out on the farm, but he agreed that Ms Smith was upset by the question and said that she thought it was irrelevant.
Mr Polkinghorne stated that reference was made by the Committee to Ms Smith's family commitments, and whether this would impact on her ability to travel. He said that this area of questioning occurred at the end of the interview, and would have occupied a maximum of five minutes. He said that her answers in this area had had no impact at all. He noted that he had already written down her score. He agreed that no other candidate had been asked these questions.
Mr Polkinghorne agreed that Mr Lanham had, during the interview, indicated that these questions were irrelevant, and that the Chair of the Committee had confirmed this at the end of the interview. He said that the Committee had agreed not to take the answers into account.
Mr Polkinghorne agreed with Mr Wyld that he had not been aware of Ms Smith's pregnancy at the interview or during the selection process.
Mr Polkinghorne agreed with Mr Wyld's version of the after-interview process. He confirmed that Ms Smith had been in contention for the last position, but that she was not selected because she did not have "hands-on direct and in-depth industry experience at practical and political levels". He said that her referee reports, which "damned her with faint praise", supported the Committee’s assessment.
Mr Polkinghorne stated that the Committee had received no selection training, and had not been given EEO guidelines.
3.3.3 Fiona Lavan's evidence
Ms Lavan confirmed that, at the time of the interviews, the company for which she worked had been called Lucas Partners. She detailed her experience in the employment field.
Ms Lavan confirmed administrative details about the selection process both prior to and after the main group of interviews.
Ms Lavan also detailed the interview process, and the various areas of the industry about which questions were asked. She confirmed that Ms Smith was also asked questions about her own experience as set out in her application.
Ms Lavan confirmed that the time commitment required had been referred to, and that Ms Smith was asked if she would have to give anything up. Ms Lavan agreed that Ms Smith was asked about being married, and about her family, to which she replied that she had a child and a supportive husband - this meant that the question of juggling time commitments was irrelevant. Ms Lavan confirmed that the comment about lying in her application by not making reference to her marital status, and the comment about not wanting to employ young people with children had been made. When a member of the Committee asked a further question in this area, Mr Lanham stated that those questions were irrelevant.
Ms Lavan stated that she was appalled by the questions. She said that Ms Smith handled the questions very well and kept her composure, even though she was clearly uncomfortable about them. Ms Lavan stated that these questions were towards the end of the interview, interspersed with other issues. They would have lasted in total about 5-7 minutes.
Ms Lavan confirmed that, after the interview, she apologised to Ms Smith that the questions had been asked. She agreed that they were both very cross, and that she could have made a comment about being "back in the ’60s" or "back in the dark ages". She undertook to Ms Smith to go back to the Committee and point out to them that the questions were irrelevant. She stated that, on her return to the room, the Chair had already made these comments, and that the Committee had agreed to them.
Ms Lavan confirmed that no-one else was asked these type of questions. She also stated that the issues were never referred to again during the rest of the selection process.
Ms Lavan stated that she had been unaware of Ms Smith's pregnancy both at interview and during the selection process.
Ms Lavan confirmed the evidence of the two members of the Committee that Ms Smith had been unsuccessful because, although she demonstrated a great deal of potential, she did not have the level of experience of other applicants.
With respect to the referee reports, Ms Lavan confirmed Mr Upton's evidence that the comment about Ms Smith and her commitments had been positive in that he said she took on a lot but did deliver. Her notes of another referee report indicated that this referee had been somewhat more guarded, and had commented on the need for Ms Smith to learn to manage her time.
4. RELEVANT FINDINGS OF FACT
I make the following findings from the evidence set out in Section 3 above.
5. THE LAW
Based on the above findings I must determine whether Ms Smith was discriminated against in breach of the Act. I need only consider allegations of discrimination on the grounds of sex and marital status as I have found as a fact that the Committee was not aware of her pregnancy during the selection process.
I note the respondent’s acceptance that appointment to the Board is employment for the purposes of the Act, and that the members of the Committee were acting on behalf of the respondent.
The two areas in which discrimination may have occurred are the decision of who to appoint to the Board, and the asking of the questions during the interview.
5.1 The appointment decision
In order to make out her complaint in this area the complainant must establish that she was treated less favourably, and that this treatment was on the grounds of her sex or marital status. There must be a causal connection between the treatment and her sex or marital status. There are numerous authorities on this point, but the respondent relied on McLachlan v St. Vincent's Hospital (Melbourne) Ltd, Human Rights and Equal Opportunity Commission, 22 January 1998.
The evidence of the respondent indicated that the Committee was mindful of the need to consider gender equity, and that much effort was made to find appropriately qualified women to fill some Board positions. The complainant, in fact, although not in the top category of applicants prior to interview, was interviewed and placed in the final pool for consideration. The respondent argued that, in fact, this amounted to more favourable treatment.
However, even if the complainant’s argument that the less favourable treatment was the fact that she was not appointed is accepted, I am not persuaded that there is a causal link to her sex. The complainant has the onus of proof, and it seems to me that implications from the numbers of women interviewed and appointed is, in this context, not enough.
There is a well-established doctrine in Chief General Manager, Department of Health v Arumugam (1987) EOC 92-195, followed in Jamal v NSW Department Of Health (1987) EOC 92-183 and Teed v Mount Alexander Hospital (1987) EOC 92-211, that it is not the role of this Commission to reassess the decision of the Committee. Rather, I must assess whether or not discriminatory factors played a part in this decision. However, when there is no direct evidence of discrimination, as is the case here, indicative factors must be taken into account.
In a contest for one position, qualifications and experience may be able to be taken into account and, where there is a clear disparity between the person appointed and the unsuccessful applicant, it may be possible to infer that discrimination has occurred. This is far more difficult when a large pool of applicants is being considered for a pool of positions.
I regard as important the fact that the complainant was not in the top category of applicants prior to interview, and prior to the alleged discriminatory questions and comments occurring. However, after the interviews she was able to move up into the top group of twelve applicants. This suggests that her interview caused her to be more, rather than less, favourably assessed.
The numbers of women interviewed and appointed, whilst sometimes being indicative of discrimination, does not in this case provide enough weight for the complainant to make out her onus, when weighed against the directions of the Minister, and the efforts made before and after the main group of interviews to encourage more women to apply. Further, my finding that the questions were asked must be weighed against my findings that members of the Committee agreed not to take them into account, and that they were not discussed again after the complainant’s interview. In all of these circumstances a causal connection cannot be established between the decision of the Committee and the complainant’s sex.
The above reasons can also be applied to the allegation on the ground of marital status. Whilst the questions were asked, this must be weighed against the other factors set out above, and the complainant again cannot make out her onus. I would need more evidence in this particular case than just an inference that because such questions were asked less favourable treatment had occurred on the ground of marital status.
The complainant also argued that the asking of the questions impacted on her ability to perform at the interview. However, this is not supported in Ms Lavan's evidence, and in the evidence of the two members of the Committee. In general, they were impressed by her ability to deal with the questions, even though she was clearly made uncomfortable by them.
The complainant further asserted that the asking of the questions in itself tainted the process. However, because a decision-maker (or a group of decision-makers) are aware of particular facts is not enough, on its own, to draw an inference that their decision will be influenced by these facts. Such an inference may be able to be drawn if there were other circumstances to support it, but there are not in this case.
5.2 The asking of the questions
In terms of liability, the final issue for consideration is whether the asking of the questions at interview was, in itself, a breach of the Act because it constituted less favourable treatment. The conduct of interviews is a normal part of the selection and appointment process, and is clearly covered by subparagraphs (a) or (b) of s.14(1) of the Act. In my view it is more likely to be subparagraph (b).
There is also little doubt that one of the reasons the questions were asked was the complainant’s sex and marital status. Whilst there was some evidence and submissions from the respondent that their purpose related to the extensive time commitment required from Board members, I am not persuaded that this was the only reason. Section 8 provides that it need only be one of the reasons. I have formed this view because of the following factors:
Whilst there may have been a need to clarify the other commitments of candidates because of the time and travel that membership of the Board would require, this was not the only reason that these questions were asked.
I must therefore determine whether the asking of such questions constituted less favourable treatment. I am of the view that it did. The questions (and gratuitous comments) concerned issues which were not related to the complainant’s ability to perform as a director. According to her evidence, and the evidence of the respondent’s witnesses, they made the complainant uncomfortable, even though she dealt with them and continued with the interview. Interview situations can be stressful for applicants, but these questions clearly placed more stress on this complainant - this is confirmed in her own evidence of events during the interview, and at the next interview in which she participated, as well as in the evidence of the respondent's witnesses.
I therefore find that the questions and comments at the complainant’s interview, detailed in my findings above, constituted discrimination against the complainant on the grounds of her sex and marital status in breach of the Act.
Because of the above finding I have not turned my mind to whether s.27 of the Act has been breached by the respondent. Such a breach would not, in this case, impact on my decision with regard to damages.
6. DAMAGES
Having made a finding of discrimination against the respondent I must consider appropriate remedial action. The complainant in this case has only sought damages, and I agree that none of the other possible remedies at my disposal would be appropriate.
Because I have found that the non-appointment of the complainant was not in breach of the Act, the complainant has not suffered any specific loss. No claim was made for the costs of the psychologist. The only possible claim in this area was an ambit claim for the cost of future counselling. However, there was no evidence before me as to what this might cost, and no expert evidence addressing the question of which actions of the respondent may have caused the symptoms experienced by the complainant. In many cases such as this, the lack of clear expert evidence on the impact which the discrimination has had means that damages awards are lower than they could be.
I can therefore only consider the question of general damages.
The complainant was clearly uncomfortable with the questions that were asked. She has given this evidence herself, and it is confirmed by the evidence of Ms Lavan about the conversation which took place after the interview. Her discomfort was also noted in evidence from members of the Committee.
The complainant gave further evidence about what took place once she was made aware of the result of the selection process. However, it is difficult to determine how much of this related to the inappropriate questioning, and how much to the fact that she was not selected as a member of the Board. It is only the former for which I can award damages.
The complainant asserted that she lost hope for the opportunities of women in the meat and livestock industry, and that she left the industry as a result. Again, I am not clear whether this related to the decision or the questions. Further, this evidence was in quite vague and general terms, and was not supported. The complainant did not go into detail about her decision to leave the Armidale property, and about the financial consequences of this decision for her and her family. I am not prepared, on such general evidence, to give this issue much weight in my consideration of a damages award.
It should also be noted that the Chair of the Committee acted, at the time of the interview, to direct the Committee not to ask such questions again, and that the answers from them were not to be taken into account. Further, he has offered an apology to the complainant. However, all of these actions were subsequent to the events.
In a case with some similarities to this one, Kummle v Commonwealth, 7 October 1998, I awarded a sum of $1000 damages to a man about whom discriminatory comments were made on the grounds of his race in the report of a selection committee not to appoint him to a position. This award was only made in relation to the discriminatory comments, as there were several other reasons that he was not appointed to the position.
In this case the questions were asked at interview, which I regard as more serious as they had an immediate effect and could have compromised the applicant's performance. Also, their impact appears to have been greater on Ms Smith than it was on Mr Kummle. It is difficult to separate the impact of the questions from the impact of the appointment decision, but the ongoing distress suffered by the complainant is detailed in her evidence and that of Ms Braund. I have therefore determined that an award of $2500 is an appropriate award.
7. CONCLUSION
The circumstances of this case are most unfortunate, and it is disappointing that they occurred at all. They could probably have been avoided had the respondent provided some information or training to members of the Committee on their legal responsibilities during the employment process. Hopefully, this will occur for similar future committees.
Ms Smith was clearly disappointed when she was not selected for the Board. As she indicated in her evidence, she was prepared to accept that disappointment if she could be clear that it was because she was not one of the best ten applicants, rather than because of her sex, marital status or pregnancy. I hope that this decision resolves that concern for her, and that she is able to continue what is clearly a very promising career in the meat and livestock industry.
I declare that the Commonwealth has discriminated against Lorraine Smith on the grounds of her sex and marital status in breach of the Act, and direct that the Commonwealth pay Ms Smith the sum of $2500 on or before 28 days from the date of publication of this decision.
Dated this 31st day of January 2000
---------------------------------
Graeme Innes
Inquiry
Commissioner
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