Ravel v Plastral Fidene Pty Ltd [1999] NSWADT 18 (12 February 1999)

Last Updated: 17 May 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Ravel v Plastral Fidene Pty Ltd [1999] NSWADT 18

REVISION DATE:

DIVISION: Equal Opportunity

APPLICANT:

Ravel

RESPONDENT:

Plastral Fidene Pty Ltd

FILE NUMBERS: 77 of 1998

HEARING DATES: 12/02/99

SUBMISSIONS CLOSED: 12/02/1999

DECISION DATE: 12/02/1999

JUDICIAL MEMBER: G Innes AM Judicial Member

LAY MEMBER: S Bullock Member

LAY MEMBER: L Taksa Member

APPLICANT KEYWORDS: Race Discrimination - Employment Race Discrimination against a contract worker

MATTER FOR DECISION: S 111 Application

PRIMARY LEGISLATION CITED: Anti Discrimination Act 1977

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: P Hanna of Counsel instructed by Tress Cocks & Maddox Solicitors

ORDERS: 1. Complaint be dismissed.

2. No order as to cost.

DECISION:

INTRODUCTION

1 On 9 December 1997, Ms Rosalind Ravel lodged a complaint with the New South Wales Anti-Discrimination Board alleging that she had been discriminated against on the ground of her race, in breach of ss 7 and 10 of the New South Wales Anti-Discrimination Act 1977 as amended, the Act. The complaint was lodged against Plastral Fidene Pty Limited, and alleged that employees of that company had used racist epithets towards the complainant during her period of contract work with the company in mid-1987.

2 The President of the Board investigated the complaint, and declined it as lacking in substance under s 90(1) of the Act on 5 May 1998. The complainant chose, as is her right under s 91(1) to have the matter referred to the Equal Opportunity Tribunal for hearing on 20 May 1998.

3 Following preliminary directions in the matter, the respondent sought, under s 111 of the Act to have the Tribunal dismiss the complaint. This application was heard on 12 February 1999, and this decision results from that application.

Background

4 The complainant, Rosalind Ravel, is of Mauritian origin, and immigrated to Australia in 1981. Between 12 May and 1 August 1997, she worked for the respondent on a temporary contract basis as a secretary. She was sent to the respondent by Choice Personnel. It is during this period that she alleges that the discrimination against her by Plastral Fidene Pty Limited occurred.

5 The respondent is an amalgamation of two companies, Plastral Pty Limited and Fidene Pty Limited, called Plastral Fidene Pty Limited. It operates from premises in Waterloo, an inner Sydney suburb, and is a plastic sheet manufacturer and exporter. The complainant's allegations relate to her employment in the administration area of the company.

The Complaint.

6 The complainant alleged that during her period of work with the company she was called "cow" and "wog" by two of the company's employees. These were Ms Patricia O'Brien who was a secretary in the company, who gave the complainant much of the direction required for the complainant's work, and Mr Edward Simath, the personnel manager of the company.

7 The complainant alleged that Ms O'Brien gave her directions in a demeaning manner, and spoke to her slowly, repeating things many times. The complainant alleged this was on the grounds of her race, and as a result of a long campaign of harassment of which she had been the victim relating to her employment almost a decade ago in the New South Wales Housing Commission.

8 She asserted in her verbal submissions at the hearing that the actions of Plastral Fidene employees were directed by a third party, and would not have occurred without the direction of that party. The links with the Housing Commission were tenuous and not supported by factual evidence or statements from other witnesses.

9 The allegations against both Ms O'Brien and Mr Simath were not supported by any other witnesses intended to be called by the complainant. Ms O'Brien, in the respondent's correspondence, absolutely denied that she had used the words in question to Ms Ravel or to anyone else.

10 With regard to Mr Simath, it was alleged that he regularly referred to the complainant as a "wog". In correspondence received from the respondent, Mr Simath, who is of Swiss origin, agreed that he did use this term around the office to refer to people, including himself, but that it was used only in a humorous vein.

11 Finally, the complainant made allegations, in her points of claim, but not in her complaint against several directors of the company. These appear to relate to sex discrimination rather than to race discrimination, and were also in fairly general terms. It was difficult for the Tribunal to see how these allegations related to the complaint, and because of this, and their very general nature, they were given little weight.

12 Much of the material provided by the complainant referred to the harassment that she and her son were allegedly receiving from sources other than the respondent.

13 It also referred to events which had occurred mainly before, but in some cases, after the relevant period of employment. The Tribunal did not regard these allegations as relevant to the complaint, and did not consider them.

The Respondent's Submission for Dismissal under s 111.

14 The respondent's first argument was that the Tribunal should exclude from its consideration events which had occurred prior to and after the complainant's period of work with the respondent, and any issues directly related to this period. It argued that the decision of Reyes-Gonzalez v Sydney Institute of Technology, a decision of the then Senior Judicial Member of the Tribunal, Murrell J on 6 March 1998, supported this proposition. The Tribunal shared that view, and as already indicated, has not considered the other material included with the complaint.

15 The Reyes-Gonzalez case is also authority for the respondent's next proposition, which was that a s 111 submission could be considered prior to the adducing of the complainant's evidence at the substantive hearing, where all of the complainant's material has been documented and filed with the Tribunal.

16 It argued that during the preliminary directions this had occurred, and that the directions given by the Senior Judicial Member contemplated that all of the complainant's material would be filed by 15 October 1998. The complainant confirmed that this was correct, and the directions then gave leave for the respondent to make their s 111 submission.

17 The Tribunal again agrees that the Reyes-Gonzalez case allows for it to proceed in this way, and that the requirements for such a process have been complied with.

18 The respondent then submitted that the complaint should be dismissed under s 111 both because it was lacking in substance and for any other reason. For the "lacking in substance" submission, the respondent relied on the test set out by Sir Ronald Wilson, the then President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409.

19 This test provides that "the words should be allowed to speak for themselves ... a claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim, would ordinarily ... be found to be lacking in substance."

20 The respondent argued that there was no support for the complainant's allegations that the words "wog" and "cow". Even if they did constitute a breach, the respondent further argues the complainant has not shown that she suffered a detriment. In fact, the respondent says, the complainant's contract at the respondent was extended by several weeks from its original term.

21 The Tribunal accepts the respondent's first argument. It has not, of course, made a finding that such words were used, as evidence has not been led by the respondent. But even if it made such a finding, that is taking the complainant's case at its highest, it views the use of such words in this context as not providing a basis for an allegation of discrimination on the grounds of race.

22 This is not to say that the use of such words in a different context, or in conjunction with other acts, could not constitute race discrimination.

23 The Tribunal does not have to finally determine the question of whether the complainant suffered a detriment. However, it notes that the extension of the contract is not, in itself, proof that a detriment did not occur, and that anguish caused to the complainant by racist epithets could adequately constitute a detriment.

24 Because the Tribunal has formed the view that these words used in this context could not constitute discrimination on the ground of race, it must find that the complaint is lacking in substance. It has therefore not considered the second limb of the respondent's argument for the dismissal of the complaint for any other reason.

25 The Tribunal orders that this complaint is dismissed.

26 In concluding, the Tribunal wishes to comment on two issues which arose during the inquiry. Firstly, it wishes to note that the complainant's failure to advise Choice Personnel of what allegedly took place during her work with the respondent is not, in itself, persuasive of the lack of substance of the complaint. It is well known that in the Australian Community someone who "rocks the boat" or complains about their treatment with one employer, can decrease their chances of obtaining further employment. The complainant was keen to work, and her reticence in this regard is completely understandable.

27 Secondly, the Tribunal views the actions of Mr Simath in his use of the word "wog" around the office of the respondent as inappropriate and grounds for a grievance. Whilst such a word may have altered in its perceptions over time, as generations of migrants have integrated into Australian Society, it is clearly a word which can be very offensive to some persons, and someone in the role of a personnel manager should demonstrate a more sensitive use of the language.

28 It would be most unfortunate if such ill-considered behaviour led to the lodging of this complaint with its consequent costs in time and money to the respondent, and in stress and trauma to the complainant.

29 No order was made as to costs.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR / ASSOCIATE