Hadfield v Bentan Pty Ltd t/a Thompson & Sons Bakery [1999] NSWADT 3 (5 February 1999)

Last Updated: 10 March 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Hadfield v Bentan Pty Ltd t/a Thompson & Sons Bakery [1999] NSWADT 3

REVISION DATE:

DIVISION: Equal Opportunity

APPLICANT:

Rhonda Gay Hadfield

RESPONDENT:

Bentan Pty Ltd t/a Thompson & Sons Bakery

FILE NUMBERS: 131 of 1997

HEARING DATES: 05/02/99

SUBMISSIONS CLOSED: 05/02/1999

DECISION DATE: 05/02/1999

JUDICIAL MEMBER: Graham Ireland Judicial Member

LAY MEMBER: Laura Mooney Member

LAY MEMBER: Milton Luger Member

APPLICANT KEYWORDS: Sex Discrimination - Employment; Victimisation

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Anti Discrimination Act 1977

APPLICANT REPRESENTATIVE: Mr P Gowran (Solicitor)

RESPONDENT REPRESENTATIVE: Mr R Warren (Counsel)

ORDERS: · The claim of discrimination by the complainant against the respondent has been substantiated.

· The Tribunal awards to the complainant compensation in an amount of $5000 and directs that that amount be paid by the respondent to the complainant within 21 days from this date.

· The claim by the complainant that she has been subjected to victimisation by the respondent, under section 50 of the Act, has not been substantiated.

· There be no order as to costs.

DECISION:

1 CHAIRPERSON: The Tribunal has considered the material that has been put before it and the submissions that have been made to it and has reached a decision. I propose to give that decision extempore. The transcript will record the decision and the transcript, or as much of it as represents the decision, will be made available to the parties as early as possible, but I am not in a position to indicate just when. You would need to keep in contact with the clerk about that.

2 This decision relates to a complaint that was brought by Mrs Hadfield against her employer, Bentan Pty Limited trading as Thompson & Sons Bakery. The complaint was originally examined by the Anti Discrimination Board and on 24 October 1997 the Acting President of the Board referred the complaint to this Tribunal for determination under section 94(1) of the Anti Discrimination Act 1997 (the Act).

3 In her complaint the complainant stated that she had been treated in ways which, under the Act, amounted, firstly, to discrimination and, secondly, to victimisation, under section 50 of the Act.

4 The evidence before the Tribunal in support of these claims comprised the evidence of the complainant only and the evidence opposing the complaint comprised the evidence of Mr Stephen Harvey, the manager for the respondent, and no other witnesses. In addition to the evidence from those witnesses the Tribunal, by consent of the parties, has had before it the contents of the report to it by the President of the Anti Discrimination Board.

5 The evidence and the material that has been presented to the Tribunal shows that the complaint relates to circumstances which occurred between October 1996 and early in December 1996. In October 1996 the respondent converted the several locations at which they had previously carried on their business and consolidated them into a factory at Maitland.

6 No specific details were provided to the Tribunal of the nature of the factory premises at which the business was carried on at Maitland, other than evidence relating to the toilet facilities at that factory. The toilet facilities comprised one section of the factory premises which contained a wash basin, a urinal and one cubicle. The complainant described the size of the space that accommodated the urinal and the wash basin as approximately eight feet by eight feet and the cubicle was attached as an additional space adjacent on one side to the urinal. The cubicle had its own door so that the door, when the cubicle was occupied, could be locked from the inside. There was no partition between the urinal and the wash basin. The door to the outside to that room did not have on the outside any indication that the toilet was a male or a female toilet. It had no signage at all. The outside door could be closed, although the evidence of the complainant was that on all occasions that she used the toilet she found the door was open and it was not closed when the person was using the cubicle.

7 In these circumstances it is claimed that that toilet was used by both the female staff and the male staff of the respondent. There were approximately 18 employees of the respondent of whom six were females.

8 The complainant took exception to the requirement for the use of she and the other female employees to these toilet arrangements soon after the complainant commenced employment at the new factory premises. She considered that the facilities were not appropriate for use of males and females and she enquired as to what arrangements were to be made by the respondent to provide separate female toilet facilities. She was told by Mr Harvey that there was available another toilet facility within the factory complex but that access to that other toilet facility was dangerous and that the employer did not wish its employees to have access to that toilet because of the dangers arising out of the access. The manager told the complainant that arrangements were being made to provide a separate toilet for females, although no date was specified as to when those arrangements would be implemented. In the events that occurred at the time when the complainant left the employ of the respondent in December 1996 the additional toilet facility was still not available to the female employees.

9 The complainant alleges that because of the nature of the toilet facilities which had to be shared by the male and female employees that the respondent had discriminated against her under section 24(1)(a) which relates to direct discrimination and section 24(1)(b) which relates to indirect discrimination and, further, that in the circumstances relating to the reduction in her rostered hours of employment, the reduction occurring early in December 1996, that she had been the subject of victimisation by the respondent under section 50 of the Act.

10 Dealing first with the claim of discrimination under section 24(1) of the Act the complainant's solicitor has submitted that both the direct discrimination provision and the indirect discrimination provision under section 24(1) are applicable and that in each instance the respondent has discriminated against the complainant. In relation to section 24(1)(a), that is the direct discrimination provision, it is submitted that the circumstances demonstrate that the provision of a urinal, being a toilet facility peculiar to men, in the toilet at the respondent's premises, and that that facility in that condition was suitable only to the men employed by the respondent, was not consistent with the provision of proper toilet facilities for female staff, especially as the wash stand provision was adjacent to the urinal and there was no division or partition which separated and segregated the urinal from the use of the wash basin.

11 Further, the complainant submitted that the failure to provide proper facilities for the disposal of sanitary pads of females in the toilet was consistent with the inadequacy of the toilet for female use. It should be added that when the non-provision of sanitary facilities for females was pointed out that the respondent quite early made the appropriate provision for the sanitary disposal.

12 The submission proceeded on the basis that to expect females to use a toilet facility which had provisions which were exclusive for male use and which did not adequately segregate those male facilities, so that the female users of the toilet must access to the cubicle by having to pass within the focus of the urinal facility, and would not be able to use the wash basin without having to be in close proximity to the urinal, were aspects which were less favourable to female users of the toilet than to the male users of the toilet and that this was demonstrative of discriminatory circumstances applying in the respondent's premises.

13 The Tribunal agrees with these submissions. It considers that all the circumstances that surrounded the requirement for the use by females of this particular toilet facility are not consistent with adequate provision for the females who wish to use the toilet and it is the view of the Tribunal that the respondent has discriminated against the complainant in terms of section 24(1)(a) of the Act.

14 In relation to section 24(1)(b) of the Act it is also the view of the Tribunal that in the circumstances the respondent has discriminated against the complainant in relation to the requirement that the females employed by the respondent must use that toilet facility. That requirement, in the view of the Tribunal, is a requirement with which men could comfortably comply and was a requirement which is not reasonable having regard to the circumstances of the case. In particular, in examining the reasonableness of the circumstances of the case, the Tribunal has taken into account that the complainant stated that on four separate occasions she had complained to the manager about the lack of the provision and the installation of the second toilet facility for the use of females and that on each occasion she was told that the extra toilet facility would be provided and that no action in this regard had been taken by the respondent between the commencement of her employment at the factory in September 1996 and the time at which she terminated her employment in December 1996.

15 There is an issue that needs to be considered in the application of section 24(1)(b) and that is that the requirement that she use this toilet facility was a requirement with which she does not or is not able to comply. In fact she did comply with the requirement simply because she had no other alternative.

16 The complainant gave evidence that she held back using the toilet facilities as long as possible but ultimately she had to use the facilities. In these circumstances it is the view of the Tribunal that an involuntary use or involuntary compliance, as indeed would have been the case in this matter, could not be said to be a form of compliance contemplated by the Act. The Tribunal accordingly holds the view that the respondent has discriminated against the complainant under section 24(1)(b) of the Act.

17 It is then necessary to consider whether, in terms of section 25 of the Act, the discrimination by the respondent was unlawful. It has been submitted that under section 25(2)(a) the discrimination was unlawful "in the terms or conditions of employment which the employer affords the employee."

18 The complainant points to the terms of the employment which required the complainant to use the toilet facility and that the toilet facility did not comply with the requirements of the Factories, Shops and Industries Act 1962 and in particular section 20 of that Act, and the regulations under the Act and in particular regulation 17. That section and that regulation both specify that the employer must provide sufficient and suitable sanitary conveniences for the persons employed in a factory, the factory including a bakehouse, and that where more than five employees are employed such conveniences shall afford proper separate accommodation for persons of each sex.

19 It is clear, in the view of the Tribunal, that the provisions of that section and the regulation were not observed by the respondent and accordingly the Tribunal considers that the discrimination was unlawful under section 25(2)(a) of the Act.

20 We turn now to consider the complaint that the complainant was the subject of victimisation by the respondent under section 50 of the Act. The complainant relies on section 50(1)(c) and (d) of the Act. Those sub-paragraphs of sub-section (1) are in the following terms.

"50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject

another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a).........

(b).........

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith."

21 The force of the complainant's submission relates to sub-section (c) of section 50(1) which renders unlawful actions by a person to subject another person to any detriment in any circumstances on the ground that the person victimised has alleged that the discriminator has committed an act which would amount to a contravention of the Act.

22 The complainant's submission required the Tribunal to find that it was on the ground of an allegation by the complainant that the respondent had committed an act which contravened the Act and that resulted in the respondent reducing the numbers of rostered hours available to the complainant early in December 1996.

23 The evidence before the Tribunal comprised evidence from the manager of the respondent that the reasons for the reduction of the rostered hours of the complainant related to her poor performance, to her dilatory approach to arriving at work on time and to her propensity to talk and distract her co-workers. The complainant agreed with some but not all of these alleged reasons. She maintained that the real reason for the reduction in her rostered hours was because of her constant complaint about the inadequacy of the toilet facilities for female employees.

24 The complainant stated that when she phoned the manager after she became aware that her rostered hours had been reduced she was told that the reason for the reduction in hours was because of her attitude and that if she improved her attitude the situation would be reviewed. The manager for the respondent denies that he made that statement to the complainant and he says that he explained to her the reasons, as he alleged, for the reduction in her rostered hours.

25 The status of the evidence before the Tribunal is such that the Tribunal is not satisfied on the balance of probability, which is the test required of it to make a finding of victimisation, that the ground for the reduction in hours of the complainant was the result of her complaints in relation to discrimination. In the view of the Tribunal the evidence is insufficient to satisfy the onus on the complainant to satisfy the Tribunal that it was for that reason that her rostered hours were reduced.

26 The consequence to the complainant of the reduction in hours was her decision that the reduction in hours was not sufficiently suitable to her and she, within a short time of a week, decided to resign from her employment.

27 The complainant, in the points of claim lodged with the Tribunal, claims that the reduction in her rostered hours which forced her, in effect, to resign, had the consequence that she lost the benefit of the wages which she was earning with the respondent and that she was able only to find alternative casual employment which compensated her only to the extent of one quarter of what she otherwise had been earning with the respondent. The claim, as amended by the complainant at the end of the hearing before the Tribunal, claimed loss of wages at the rate of $15,600 per annum for a period of two years, being the period from the date on which she resigned her employment to the date of the hearing, amounting in total to $31,200.

28 There is no evidence presented to the Tribunal which supports the claim for the loss of wages. In particular the claimant has not placed before the Tribunal any information relating to her tax returns for the relevant period nor any other evidence which would enable the Tribunal to determine with any certainty the extent of the claim for the loss of wages of the quantity that is claimed. In any event it is the view of the Tribunal that as the claim of victimisation under section 50 has not been substantiated that there is no proper basis on which the Tribunal could make an award to the complainant relative to loss of wages.

29 The claim of discrimination, in the view that the Tribunal takes of the evidence before it, does not directly refer to the decision taken by the claimant to terminate her employment. That decision was taken as a consequence of the reduction in her rostered hours and on the evidence before the Tribunal the reduction in the rostered hours is not the consequence of the claim of victimisation and there is insufficient evidence to support the proposition that it was a consequence of the unlawful discrimination suffered by the complainant.

30 In this situation the Tribunal has taken the view that it would not be open to it to make an award to the complainant relative to any loss of wages and the Tribunal determines that there be no award to the complainant in relation to that part of her claim.

31 This leaves for determination the question of whether, in the circumstances, the claimant is entitled to an award of general damages to compensate her for the stress, humiliation and embarrassment that arose from the unlawful discrimination that she has suffered. The evidence of the complainant in this regard was of a general nature. She said that she did suffer stress and that she was embarrassed by having to ask management on a number of occasions to provide the extra toilet facilities, and that she was embarrassed each time she was obliged to use those toilet facilities, embarrassed by the need to be satisfied that there were no male persons in the toilet before she entered it and that there were no male persons about to enter the toilet at any time during her occupation. These elements of stress and humiliation are matters for which the Tribunal will compensate the complainant and it is a matter open to the Tribunal in each case to determine what is an appropriate amount in the circumstances to be awarded.

32 It has been put to the Tribunal that the nature of the discrimination was so trivial that, under section 113(1)(b)(v), it should take no further action in the matter. The Tribunal is not of a mind to accede to this submission as it considers that the provision of toilet facilities, by the respondent, for use of females as well as males of the nature of the facilities that have been described, should not be regarded as so trivial that the Tribunal should make no order. It is the view of the Tribunal that in this instance it would be appropriate to award to the complainant, by way of compensation for general damages, an amount of $5000.

33 There is a question as to whether, in addition, there should be an order for legal costs to be paid. Under the provisions of the Act the Tribunal has jurisdiction to award costs against a respondent in exceptional circumstances. The Tribunal, having regard to the fact that the claim of the complainant of victimisation has not been upheld by the Tribunal, is of the view that the successful claim of discrimination is not of such an exceptional nature that it would justify an award of costs. Accordingly the Tribunal will not make an award for costs in this matter.

34 The Tribunal therefore makes the following orders and findings:

· Firstly, that the claim of discrimination by the complainant against the respondent has been substantiated.

· Secondly, that the Tribunal awards to the complainant compensation in an amount of $5000 and directs that that amount be paid by the respondent to the complainant within 21 days from this date.

· Thirdly, that the claim by the complainant that she has been subjected to victimisation by the respondent, under section 50 of the Act, has not been substantiated.

· Fourthly, that there be no order as to costs.