Fonua v The Broken Hill Pty Co Ltd & Ors [1999] NSWADT 59 (9 August 1999)

Last Updated: 13 August 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Fonua v The Broken Hill Pty Co Ltd & Ors [1999] NSWADT 59

REVISION DATE:

DIVISION: Equal Opportunity

APPLICANT:

Liufau Fonua

RESPONDENT:

The Broken Hill Pty Co Ltd

Bruce Mewett

Brad McMahon

FILE NUMBERS: 37 of 1998

HEARING DATES: 07/06/99, 21/06/99

SUBMISSIONS CLOSED: 21/06/1999

DECISION DATE: 09/08/1999

JUDICIAL MEMBER: G Ireland Judicial Member

LAY MEMBER: L Mooney Member

LAY MEMBER: J Strickland Member

APPLICANT KEYWORDS: Aiding and Abetting; Race Discrimination - Employment; Victimisation

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Anti-Discrimination Act 1977

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: D Lloyd of Blake Dawson Waldron, Lawyers

ORDERS: 1.Pursuant to Section 111(1) of the Act, the Tribunal finds that the two complaints of unlawful discrimination and the complaint of victimisation are misconceived and lacks substance and the Tribunal directs that each complaint be dismissed.

2.Pursuant to Section 111(2) of the Act, the Tribunal orders that the Complainant pay the costs reasonably and properly incurred by each of the Respondents, assessed on a party to party basis, within twenty-one (21) days of the date on which the parties may agree on the amount of those costs, or failing agreement within 21 days after the date of this decision, such costs to be assessed in accordance with the provisions of the Legal Profession Act 1987.. The costs of such assessment to be included in this award of costs.

DECISION:

Background

1 The Complainant in this inquiry appeared in person before the Tribunal. Although the Complainant does not have legal training, he has experience in representations before Tribunals and Courts, having represented himself before this Tribunal in a claim he made against the First Respondent alleging discrimination on the ground of race arising out of his dismissal from the employment of the First Respondent in 1993, and by appearing in person on Appeals relating to that decision to the Supreme Court of New South Wales, the Full Court of New South Wales and to the High Court of Australia on an Application for Leave to Appeal. In each of these prior matters, the Complainant was unsuccessful.

2 In addition, the Complainant has represented himself in proceedings which he brought in the Supreme Court of New South Wales against the Honourable Jeff Shaw MLC, the Attorney General of the State of New South Wales and others, and an action against the First Respondent and six others, relating to his alleged unlawful dismissal by the First Respondent in 1993. These proceedings were unsuccessful and the Complainant subsequently sought leave to appeal against the latter decision to the New South Wales Court of Appeal. That Application was refused. On the last Hearing date before the Tribunal, the Complainant produced to the Tribunal copies of Notices which he had recently lodged with the High Court of Australia seeking leave to appeal against the decision of the New South Wales Court of Appeal.

3 The President of the Anti-Discrimination Board has referred this complaint to the Tribunal pursuant to Section 94(1)(c) of the Anti-Discrimination Act 1999 ("the Act") following receipt from the Complainant on 10th November 1997 of a written complaint arising out of the attendance by the Complainant at a two day retirement planning seminar sponsored by the First Respondent for a group of its employees. The Report of the President of the Anti-Discrimination Board to this Tribunal was exhibited to this Tribunal without objection from the Complainant. In his report to the Tribunal, the President states that on 30th December 1997 the Complainant requested that his complaint not be investigated further "as he did not want anyone who had dealt with his previous complaint to deal with this matter. Mr Fonua clearly indicated that this included the President of the Anti-Discrimination Board. Mr Fonua does not believe that the President can be objective in this matter as Mr Fonua and the President are parties to another matter before the Supreme Court."

4 On 26th March 1998 the Complainant requested the President to refer his complaint to this Tribunal for inquiry, without further investigation without further investigation.

5 On 27th and 28th August 1997 the Complainant attended a retirement planning seminar held by the First Respondent for a group of its employees at the Salamander Shores Motel, Port Stephens. The Complainant alleges that he attended the Seminar as an interpreter for an employee of the First Respondent, Mr Tuipulotu (Tom) Puliuvea, and that the First Respondent had agreed to pay the Complainant fees as an interpreter for his attendance at the seminar for the two (2) days. The Complainant claimed an hourly rate of Twenty five dollars ($25.00). In a statement which he delivered to the Payroll Office of the First Respondent on 29th August 1997, he claimed that he acted as an interpreter for 8.5 hours on 27th August 1997 and for 8 hours on 28th August 1997, making a total claim of $412.50 for the two days. The Complainant is an accredited interpreter in the Tongan language with the Ethnic Affairs Commission, which he stated, has a standard hourly rate of charge for interpreters of $34.00 per hour. The Complainant also stated that he had been paid by the First Respondent on two previous occasions when he had assisted Mr Puliuvea in 1994 as an interpreter when Mr Puliuvea attended a specialist Medical Centre at Hamilton. On these occasions his interpreter fees were paid to him by the First Respondent through the Ethnic Affairs Commission.

6 The Complainant is of Tongan Nationality.

7 The First Respondent acknowledged that it had agreed for the Complainant to attend the seminar to assist Mr Puliuvea in interpreting the seminar material and the papers and discussions delivered at the Seminar, but the First Respondent denies that it agreed to pay the Complainant for his services as an interpreter. The First Respondent acknowledges that it arranged for the Complainant to attend the seminar and the functions associated with it including the accommodation and meals without charge to the Complainant.

8 The evidence establishes that the arrangement for the Complainant to attend the seminar to assist Mr Puliuvea was made between Mr Siaosi (George) Puliuvea, the son of Mr Tuipulotu Puliuvea and Mr Bruce Mewett, the Second Respondent. Mr Siaosi Puliuvea did not give evidence before the Tribunal. The Second Respondent, in his evidence, stated that he first approached Mr Siaosi Puliuvea and suggested that he accompany his father to the seminar. Mr Siaosi Puliuvea agreed that it would be of help to his father if he were accompanied by a person who could assist his father in interpreting what was discussed at the seminar, but Mr Siaosi Puliuvea declined the invitation because he was unable to leave his work during the days of the seminar. The Second Respondent stated further that about two days after this conversation, Mr Siaosi Puliuvea contacted him again and he suggested that the Complainant would be a suitable person to accompany his father at the seminar. After discussing the proposal with his Supervisor, Mr McMahon, the Third Respondent, the Second Respondent again phoned Mr Siaosi Puliuvea and confirmed that it would be in order for the Complainant to attend the seminar to assist Mr Tuipulotu Puliuvea.

9 The Second Respondent, in his evidence, stated:

"It is quite common for employees attending the Leisure and Lifestyle Seminar to bring a son, daughter or friend along to assist them during the Seminar, rather than their spouse. At all times during my conversations with Mr George Puliuvea, I understood Mr Fonua to be attending the Seminar as Mr Tom Puliuvea's friend. At no stage was any mention ever made of payment for Mr Fonua for interpreting services or on any other basis. The only agreement was that BHP would pay the expenses for Mr Fonua to attend (ie, transport, meals, accommodation and entertainment), in the same way that BHP pays for all other partners or support persons accompanying employees to attend the Seminar."

The Second Respondent also stated that had a request been made for an official interpreter to be allowed to attend the seminar for Mr Tom Puliuvea, he would have arranged for a qualified paid interpreter to attend the seminar, as on other occasions, the First Respondent has arranged for qualified interpreters to attend seminars for the purpose of translating for employees. In this regard, evidence was placed before the Tribunal of a seminar held for employees of the First Respondent, of Macedonian background, for whom interpreters in the Macedonian language were provided at a seminar held in October 1998.

10 The Complainant stated that about 5 days before the seminar Mr Tom Puliuvea told him that he (Mr Tom Puliuvea) had arranged with the First Respondent for the Complainant to attend the seminar and that the First Respondent would pay the Complainant's fees for attending the seminar as an interpreter.

11 At no stage prior to the seminar did the Complainant have a conversation with an employee of the First Respondent, relating to his attendance at the seminar or in particular about the terms on which he would be attending the seminar. The Complainant relied on the arrangements that were made by Mr Siaosi Puliuvea for his attendance at the seminar and on the statement, which he alleged, was made to him by Mr Tuilulatee Puliuvea.

12 To support his claim for payment of interpreter's fees at the seminar, the Complainant produced a document signed by Mr Siaosi Puliuvea dated 28th August 1997 which is in the following terms:

"To whom it may concern,

I wish to note that when I spoke with Mr Bruce Mewett of BHP Human Resources Department on the phone concerning my father's scheduled two day seminar at Salamanda Shores Motel, Port Stephens, it was mutually made known between Mr Mewett and myself that Mr Liufau Fonua (George) would be accompanied my father, Mr Tuipulotu Puliuvea (Tom) as an interpreter in the Tongan language. Mr George Fonua is an interpreter in the Tongan language with the Ethnic Affairs Commission of New South Wales.

Mr Bruce Mewett and I agreed that I would arrange for Mr Liufau Fonua to accompany my father under the understanding that my father, Mr Puliuvea needed an interpreter to accompany him.

My father and Mr Fonua understood that he was accompanying my father as an interpreter in the Tongan language.

Yours faithfully

Siaosi Puliuvea (BA Psych) JP"

13 The Complainant stated that he typed this statement which was signed at his request by Mr Siaosi Puliuvea and the Complainant stated that he handed a copy of that Statement to the Human Resource Department of the First Respondent when he attended at its Payroll Office on 29th August 1997. The Tribunal notes that the Statement of Mr Siaosi Puliuvea does not refer to the financial arrangements under which it had been agreed that the Complainant would attend the seminar and in particular it does not refer to an agreement for the payment to the Complainant of a fee relating to his interpreting at the seminar.

14 At the conclusion of the seminar on 28th August 1997, while those attending were seated around a U shaped conference table, the Complainant walked from his position at the table across to the opposite side where he spoke to the Second Respondent. The Complainant stated that he asked the Second Respondent for payment of his interpreter fees and that the Second Respondent denied that there was an arrangement to pay the Complainant for interpreter fees. The Complainant stated that he told the Second Respondent that he would attend at his office on the following day with a formal claim. The Second Respondent stated that when he told the Complainant that he was not entitled to a payment for interpreter fees, the Complainant became abusive and that he spoke in an abusive way to the Second Respondent's wife who was sitting beside him. The Complainant denied that he had acted in an abusive manner towards the Second Respondent or his wife.

15 On the morning of the following day, 29th August 1997, the Complainant attended at the Payroll Office of the First Respondent, where he spoke to the Second Respondent. The Complainant stated that he handed the Second Respondent three documents which comprised a letter, attaching a formal Statement of Claim for the amount of $412.50 for interpreting fees and requesting a payment by way of a cheque by 3.00pm that day. The third document was a copy of a letter addressed to the Manager of the Department of Social Security, dated 27th August 1997, which informs the Department that:

"I have been requested by BHP Steel Works to attend a retirement seminar as a Tongan interpreter in respect of Mr Tom Puliuvea who is currently employed by BHP.

The seminar will be held at Salamanda Shores Motel for two days from 27th to 28th August 1997. I plan to claim $195.00 per day if BHP would agree to my proposal, etc.

I shall inform you the agreed amount paid by BHP in my next fortnightly form, etc."

Irrelevant parts of the letter have been omitted.

16 The Tribunal notes that the letter contains an acknowledgment by the Complainant that on 27th August 1997, there had not been an agreed amount to be paid by the First Respondent for his services.

17 The Respondents do not agree that a copy of the letter to the Department of Social Security was lodged with the Second Respondent by the Complainant on 29th August 1997.

18 The Complainant stated that he told the Second Respondent that the document contained his claim for payment and reminded him that on the previous day he had said that he would take up the matter with management. The Complainant said that the Second Respondent responded by saying, "no, no." The Complainant said that he then asked the Second Respondent to have a look at the Bill of Costs and that the Second Respondent then directed another gentleman who was at the counter with the Second Respondent in the payroll office, to "ring up the security to remove me from the office." The Complainant said that he saw this man use the telephone but he did not hear what was said. The Complainant stated that he then left and that he was very upset.

19 The Second Respondent stated that when the Complainant came to the counter at the Human Resources Services Office of the First Respondent, the Complainant presented him with the letter dated 29th August 1997 to which was attached his Statement of Account, and he said to the Complainant:

"We have no intention of paying his Account but I will take this Account and show it to management and then we will pass it onto the company's solicitors."

The Second Respondent stated that the Complainant became visibly upset and began yelling and screaming at him in words to the following effect:

"You don't understand, there must be something wrong with your mind, are you stupid or something."

20 The Second Respondent said that he told the Complainant that he did not intend to be spoken to like that and he then instructed his assistant, Mr Braye to request security to come to the counter to escort the Complainant from the premises. Before Mr Braye was able to dial the number, the Complainant left the premises.

21 The Second Respondent continued that on 5th September 1997, he was contacted by telephone by Mr Siaosi Puliuvea, who said that his father was most upset by the remarks that were made to him by the Complainant and that his father also wishes to apologise to his wife for any embarrassment that the Complainant may have caused her. The Second Respondent also stated that in a telephone conversation with Mr Siaosi Puliuvea on 10th September, Mr Siaosi Puliuvea stated that the Complainant had come to him at work and presented him with a letter stating that BHP had agreed to pay him for his interpreting services and that he refused to sign it and that he wanted nothing further to do with the Complainant.

22 Mr McMahon, the Third Respondent, is the Employment Service Co-Ordinator of the Newcastle Steel Works of the First Respondent. He wrote a letter to the Complainant dated 17th September 1997, responding to the Complainant's letter of 29th August 1997. The Third Respondent advised the Complainant that as there was no agreement made with the Complainant by the First Respondent for the payment for his attendance at the seminar, the First Respondent rejected his claim for payment.

23 The Complainant then wrote a letter addressed to Mr Robert Kirby (sic.Kirkby), the Group General Manager of the First Respondent, dated 25th September 1997, in which he amplified the background to his claim for payment and concluded with a threat of legal action, "against you personally and other officers involved in these affairs on the ground of my race, etc." The letter attached a copy of "a supporting statement by Mr Siaosi Puliuvea dated 29th August 1997 confirmed that the arrangement was validly made for me to attend and be paid by BHP etc." By letter dated 23rd October 1997, Mr McMahon responded to the Complainant's letter to Mr Kirkby in which he stated that the company disagrees with the views expressed in the Complainant's letter but concludes:

"notwithstanding the company's view that there exists no basis, legal or otherwise, for your claim for payment, the company will pay you the amount of $412.50 on an ex gratia basis. The company's cheque payable to you in this amount is enclosed."

On receipt of that letter, the Complainant banked into his Bank Account the cheque that was enclosed. He had no further

discussion with the First Respondent or the Second or Third Respondents. By letter dated 31st October 1997, he wrote a letter of complaint to the President of the Anti-Discrimination Board.

24 Following the reference by the President of the Anti-Discrimination Board to the Tribunal of the complaint against the First Respondent, the Complainant has made two applications to the Tribunal under Section 98 of the Act for the joinder of additional parties. On 18th May 1998 the Tribunal directed that the Second and Third Respondents be joined but refused the request for the joinder of Mr Kirkby as a Fourth Respondent. On 17th April 1999 the Tribunal refused the Complainant's application to join as additional Respondents, Mr Golding and Mr Gately, senior members of the Human Resources Section of the First Respondent.

CLAIMS OF DISCRIMINATION AND VICTIMISATION

25 The Complainant claims that he has been discriminated against, on the ground of his race, under Section 7(1)(a) of the Act, in that, the First Respondent, through its employees Mr Mewett and Mr McMahon, the Second and Third Respondents, treated him less favourably than in the same or similar circumstances it would have treated a person of a different race.

26 He claims that the discrimination was unlawful, under Section 10 of the Act, which relates to unlawful discrimination against a contract worker by a principal.

27 In his points of claim filed with the Tribunal, the Complainant also claimed that he had been discriminated against under Section 7(1)(c) of the Act, which relates to indirect discrimination. At the Hearing of the enquiry, the Complainant did not maintain this claim.

28 It is the view of the Tribunal that a claim of unlawful discrimination by the Complainant in the circumstances of this claim, cannot be supported as an unlawful claim of discrimination under Section 10 of the Act, based on discrimination by a principal against a contract worker. Section 4 of the Act defines a contract worker to mean, "an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person."

29 The evidence before the Tribunal shows that the First Respondent contracted with Hunter Consulting Pty Limited, an independent company to establish and conduct the seminar. The First Respondent took no part in the detailed organisation of the conference. All arrangements for the conduct of the conference were made by Hunter Consulting Pty Limited, which invoiced the First Respondent on 3rd September 1997 with an amount of $21,000.00 as its contract price for the holding of the seminar. Its invoice of that date provided for a charge at the rate of $700 for each of the 30 participants at the seminar. An earlier invoice of the 27th August 1997 showed that an amount of $18,900.00 was charged for 27 participants at the rate of $700.00 for each participant, plus some additional charges including, "interpreter's accommodation at $265.00 pp x 2 - $530.00." The total amount of this invoice was $20,790.00. No explanation was given to the Tribunal for the different manner in which the invoices of 3rd September 1997 and 27th August 1997 were constructed. The Complainant has alleged that he contracted for his interpreter services with the First Respondent directly and he has not claimed that he had any relationship with Hunter Consulting Pty Limited in relation to the seminar.

30 It is the view of the Tribunal that in these circumstances the Complainant was not a contract worker within the definition in the Act and his claim of unlawful discrimination under Section 10 of the Act is misconceived.

31 Having regard to the Complainant's lack of legal background and to his self representation at the inquiry, the Tribunal has examined his claim of discrimination, under Section 8 of the Act which renders unlawful discrimination against a person on the ground of race, if, in the circumstances described in the sub-sections of Section 8, those circumstances arose out of the employment of the Complainant by the First Respondent. The definition of employment in Section 4 of the Act includes, "work under a contract for services." It is more likely, in the circumstances relating to this claim, that if discrimination occurred, the discrimination would fall to be considered as unlawful if it came within the provision of the sub-sections of Section 8 of the Act. If the arrangement which the Complainant alleged constituted an arrangement or an agreement for the payment of interpreter fees to the Complainant by the First Respondent, such an arrangement or agreement may constitute a contract for services and accordingly if discrimination in relation to that arrangement or agreement occurred, the arrangement or agreement could be examined under Section 8 of the Act.

32 The evidence before the Tribunal however, falls far short of establishing that there was any arrangement or agreement between the First Respondent and the Complainant for the payment of fees to the Complainant by the First Respondent for the provision of interpreting services. There is nothing in writing between those parties to substantiate the alleged arrangements and although in the circumstances written confirmation of an arrangement may not be essential, the Tribunal is satisfied that the Complainant had no direct oral contact with the First Respondent about being paid interpreter fees for the services which he provided to Mr Tom Puliuvea at the conference. There is nothing in the evidence that would support an inference that the First Respondent had agreed to pay for those services.

33 To establish an agreement for the payment to the Complainant by the First Respondent of fees for acting as an interpreter for Mr Tom Puliuvea at the seminar, the Complainant relies on his statement of the advice he received from Mr Tom Puliuvea and from Mr George Puliuvea that the First Respondent had agreed with them that it would pay such fees to the Complainant. In the face of the denial of such agreements by the First Respondent and the Second Respondent, and in the absence of evidence from Mr Tom Puliuvea and Mr George Pulievea, the Tribunal does not accept that the evidence of the Complainant is sufficient to establish the agreement on which he relies to support his complaint.

34 All that the Complainant could point to, in addition, to support his claim were the invoices from Hunter Consulting Pty Limited to the First Respondent which showed an amount being paid for participants at the seminar at the rate of $700.00 per person. The Complainant also alleged that persons who had delivered papers to the seminar had been paid a fee. No evidence was provided by the Complainant to support this allegation. The Complainant also relied on the statement allegedly signed by Mr Siaosi Puliuvea on 29th August 1997 but there is doubt raised by the evidence to establish that Mr Siaosi Puliuvea in fact signed that document and in any event, the document does not refer to an arrangement for the payment of fees for the interpreting services.

35 The Complainant also relied on evidence that at a conference in August 1998, the First Respondent paid fees to interpreters in the Macedonian language who attended to support the Macedonian employees at the Seminar. The Complainant submitted that that evidence showed firstly that the First Respondent paid for interpreter services and secondly evidence of discrimination against him because when compared to his situation, he was not paid when other interpreters were paid by the First Respondent. This latter submission is misconceived as it relates to events that occurred after the date of the complaint being examined in this enquiry and accordingly cannot be used as a valid comparison for the purposes of the complaint.

36 The Tribunal finds that the complaint of discrimination under Section 7(a) of the Act, based on the failure to pay interpreter fees to the Complainant, is misconceived and lacks substance.

37 In view of this finding the Tribunal is not required to examine the further issue of whether the circumstances surrounding the allegation of less favourable treatment of the Complainant, occurred on the ground of his race. For completeness however, the Tribunal is of the view that there is a paucity of evidence that any of the circumstances that the Complainant considers constituted less favourable treatment of him, had any connection with his race.

38 The Tribunal has formed the view that the actions taken by the First Respondent in relation to the Complainant's attendance at the seminar is explicable as part of what would be normally expected of an employer concerned to ensure that its employees who are faced with retirement or retrenchment, are adequately informed of information relevant to the decisions that they need to make about their future wellbeing. The concern of the employer about the ability of Mr Tuipulotu Puliuvea to understand the material and discussions at the seminar is a further illustration of the employer's concerns to ensure that their employees are properly catered for and the support given by the employer to the request by the son of Mr Puliuvea for his friend, the Complainant, to accompany his father at the seminar and to help interpret that material is also explicable in terms of the employer's desire to assist its employees. Those arrangements for the Complainant's attendance at the seminar were connected to his Tongan race, because of the need for a person conversant with the Tongan language to assist Mr Tuipulotu Puliuvea.

39 The subsequent dispute about the lack of agreement to pay, in addition to his accommodation and other costs of attending the seminar, for his fees as an interpreter, was not caused by or was the result of his Tongan nationality.

40 In his Points of Claim the Complainant referred to, although in his submissions he did not expressly address the matter, a further act of discrimination which he alleged arose under Section 7(1)(a) of the Act because he was treated less favourably by the employees of the First Respondent when he attended on 29th August 1997 at the counter of the Human Resources Department to lodge his bill for interpreters fees because of the manner in which he was treated on that occasion. The allegation is that other persons who lodged claims for payment at the Human Resource Department of the First Respondent would not have been treated so adversely. In order for such a claim of less favourable treatment to succeed, it must be established that in the same or similar circumstances the claim made by a person of a different race would have been treated more favourably. It would be also necessary to show that if less favourable treatment of the kind required to be established, were proven, that the less favourable treatment occurred on the ground of the Complainant's race. 41 The evidence of the Complainant was directed to show that there was no justification for the Second Respondent, on 29th August 1997, to direct Mr Braye to telephone for security to eject the Complainant from the First Respondent's premises. The Complainant denies that he acted in an abusive manner, either on that occasion or on the preceding afternoon at the end of the seminar when he verbally requested the Second Respondent to arrange payment for his interpreting services.

42 The evidence of the Second Respondent contradicts the Complainant of both occasions. The Second Respondent stated that on the afternoon of 28th August 1997 at the end of the seminar when he refused to acknowledge the Complainant's claim for payment, the Complainant did become abusive and that he upset the Second Respondent and his wife. The Second Respondent also stated that when the Complainant attended at the office of the First Respondent on 29th August 1997 when he was told that his claim would not be paid, the Complainant became abusive and he described the nature of abuse of the Complainant.

43 The Tribunal has no hesitation in accepting the versions of the Second Respondent in preference to the versions of the Complainant, in describing what occurred on both occasions. In his presentation in his evidence and in his submissions before the Tribunal, the Complainant demonstrated a capacity for short temper when he was challenged on issues arising out of his evidence or those submissions. When shortcomings in his evidence to support his contentions, were pointed out to him, on several occasions, the Complainant became abusive to the Tribunal to such an extent that on occasions he had to be reminded that his right of representation was at the discretion of the Tribunal and that if his behaviour did not improve that right of representation would be withdrawn. His inability to tolerate challenges to his assertions was amply demonstrated at the conclusion of his submissions to the Tribunal, when prior to the commencement of submissions by the Respondent's representative, the Complainant collected his papers from the bar table and left the Hearing room and did not return. The Respondent's submissions were heard in his absence.

44 In these circumstances, the Tribunal has no hesitation in finding that the treatment which the Complainant received at the counter at the premises of the First Respondent on 29th August 1997 when he was told that his claim would not be accepted and would be referred to senior management for consideration and when the Second Respondent directed Mr Braye to telephone security, was justified. The Complainant was not treated less favourably than, in similar circumstances, a person of another race would have been treated.

45 The Tribunal accordingly finds that the claims of discrimination on the ground of race are misconceived and lack substance.

Claim of Victimisation

46 The claim of victimisation under Section 50 of the Act relates to the events that occurred at the counter of the First Respondent on 29th August 1997. The Complainant alleges that on that occasion he was victimised because of the detriment he suffered from the humiliating way in which he was treated by having his claim not paid and hearing a direction that the security officers be called to assist him from the premises. He alleges that such actions were taken on the ground that he had brought proceedings under the Act against the First Respondent, and, generally, because of the substantial history of litigation between the parties arising out of the earlier claim of discrimination made by the Complainant against the First respondent.

47 The Tribunal has already dealt with the events which occurred on 29th August 1997 when the Complainant attended at the counter of the Human Resource Department of the First Respondent. The Tribunal has determined that the conduct of the officers of the First Respondent on that occasion was justified in the circumstances. In view of that finding, it follows that any detriment which the Complainant alleges he suffered on that occasion was not caused by or was a result of the previous proceedings between the parties or the allegations arising out of those proceedings.

48 The action of the Second Respondent in refusing to pay the claim on that occasion was for the reasons that the Tribunal has found, justified, as there was no agreement between the Complainant and the First Respondent for the payment of those fees. The action in calling for assistance from the First Respondent's security staff also, in the view of the Tribunal, was justified because of the abusive approach taken towards the Second Respondent by the Complainant on the preceding afternoon and on the occasion that he attended at the counter of the Human Resource Department on 29th August 1997.

49 In the view of the Tribunal, this claim is also misconceived and lacks substance.

50 It follows from the findings of the Tribunal that the claim that the Second and Third Respondent aided and abetted unlawful conduct of the First Respondent against the Complainant, must also fail.

FINDINGS OF THE TRIBUNAL

51 In relation to each of the complaints made by the Complainant against each of the Respondents, the Tribunal finds that those complaints are misconceived and are lacking in substance. Those findings are made pursuant to Section 111(1) of the Act, which is in the following terms:

"(1) Where, at any stage of an enquiry, the Tribunal is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint."

52 In the view of the Tribunal, it is open to it, at the conclusion of an inquiry, to make findings in terms of Section 111(1) of the Act in lieu of a finding that the claim or claims have not been substantiated under Section 113(1) of the Act. The Tribunal considers that it is more appropriate in relation to the complaints into which it has inquired to make a finding based on the misconception by the Complainant of his complaints and also on the lack of substance in the material upon which the Complainant sought to base his allegations.

53 In cross examination, the Complainant agreed, that in addition to his motive in relation to these complaints to have redress for those complaints, he was motivated by his dissatisfaction with his dismissal from the First Respondent in 1993 and the failure of the President of the Anti-Discrimination Board and of the Tribunal which subsequently enquired into them, to recognise the 22 complaints that he made arising out of that dismissal.

54 The probability that the Complainant is motivated in his pursuit of the complaints before this Tribunal by a desire other than to redress his grievance arising out of those complaints, is reinforced by his response to the ex-gratia payment made by the First Respondent to his claim for payment of the amount of $412.50 for his interpreter services. The Complainant accepted that payment, banked the cheque and then proceeded to make to the Anti-Discrimination Board the complaints that give rise to this enquiry. He did not respond directly to the First Respondent to its letter which enclosed the cheque. In cross examination, his response to the question as to why he banked the cheque and wrote to the Anti-Discrimination Board, he said, "It was not in the form that I take." In his evidence in chief, he said, "The cheque what they sent was an ex gratia payment, but that is a different payment."

55 The Tribunal is concerned that the pursuit by the Complainant of these complaints goes beyond the misconception on his part of the application of the Act to the circumstances relating to his complaints. The pursuit of the claims of discrimination, after accepting payment of the amount which he claimed for interpreter services, points to the frivolous nature of that pursuit and of the complaints. The complaint of victimisation, taken in the context of the pursuit of the claims of discrimination, also suggested a frivolous approach by the Complainant to the pursuit of that claim. When in addition regard is had to the long history of the pursuit by the Complainant of his earlier claims of discrimination against the First Respondent which were rejected by the President of the Anti-Discrimination Board and also rejected in the subsequent inquiry by this Tribunal and the subsequent appeals by the Complainant to higher Courts, suggests that the pursuit of the complaints before this Tribunal is vexatious.

56 In Langley v Niland (1981)2NSWLR104), Mr Justice Hunt, on appeal from the decision of the Tribunal in that matter, in considering the application of Section 90(1) of the Act as it then stood (and which is in similar terms to Section 111(1) of the present Act), said,

"'misconceived' should not in my view, be given here a meaning beyond a complaint founded upon a wrong idea as to the facts, so that a common genus or class is maintained with the three other adjectives utilised in Section 90(1).

`For any other reason' is normally construed ijusdem generis with the four adjectives which proceeded so that to exclude the application of Section 90 where the complaint is considered to be outside the provisions of the Act rather than one for which there is an insufficient or unmeritorious factual basis. The ijusdem generis rule must nevertheless give way to an indication that the words are to be read in the general sense in which they are expressed. There is, in my opinion, a strong indication in this statute that the words in question should not be read ijusdem generis.

..... I am therefore satisfied that a conclusion by the Counsellor that a complaint is not within the provisions of the Act amounts to `any other reason' within Section 90(1)."

57 Although invited to do so, the representative of the Respondents did not submit to the Tribunal that, in these complaints, the Tribunal should make a finding that the complaints are frivolous and vexatious. In the absence of such a submission, the Tribunal refrains from such a finding, and relies on a general expression of its views of the nature of the complaints before this enquiry. The Respondents, however, did seek from the Tribunal, a finding that the complaints should be dismissed under Section 111(1) of the Act. In view of the observations which the Tribunal has made, the Tribunal accedes to this request and it finds that the two complaints of discrimination are misconceived and lack substance and that the complaint of victimisation is misconceived and lacks substance. The Tribunal accordingly directs that each complaint be dismissed.

COSTS

58 The Respondents have sought an Order that the Complainant pay the costs of the Respondents in relation to this enquiry.

59 It is apt in dealing with this application to quote the remarks of Hutley JA in Langley v University of New South Wales (1984)(EOC92-018 at 75468),

"I wish to add a few words. This Act, the Anti-Discrimination Act, is an act calculated to generate frivolous, vexatious and misconceived proceedings. It is the responsibility of the Board to see that those are kept under control. One of the few effective methods of controlling what amounts to the abuse of opportunities open by that Act is by making orders for costs. That fact is recognised by the Act. By sub-section 111(2) it says:

`Where the Tribunal dismisses a complaint under sub-section (1), it may order the Complainant to pay the costs of the enquiry.' ....In my opinion, the complaints in this case lacked any conceivable merit in fact or law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the Complainant was not ordered to pay the costs by the Tribunal. That is the one effective sanction available to keep this Act within bounds and ensure it will not be made the subject of gross abuse."

60 The Tribunal considers that it is appropriate in this inquiry, based on the comments and observations that the Tribunal has made about the nature of the complaints, that it accede to the request by the Respondents and apply sub-section (2) of Section 111 and to order that the Complainant pay the costs of the Respondent in relation to this inquiry.

DIRECTIONS

61 In this inquiry, the Tribunal makes the following directions:

1.Pursuant to Section 111(1) of the Act, the Tribunal finds that the two complaints of unlawful discrimination and the complaint of victimisation are misconceived and lack in substance and the Tribunal directs that each complaint be dismissed.

2.Pursuant to Section 111(2) of the Act, the Tribunal orders that the Complainant pay the costs reasonably and properly incurred by each of the Respondents, assessed on a party to party basis, within twenty-one (21) days of the date on which the parties may agree on the amount of those costs or failing agreement within 21 days after the date of this decision, such costs to be assessed by an independent taxing specialist appointed by the Registrar of the Tribunal. The costs of such assessment to be included in this award of costs.