Virveste v Sir Moses Montefiore Jewish Home [1999] NSWADT 9 (18 March 1999)

Last Updated: 19 March 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Virveste v Sir Moses Montefiore Jewish Home [1999] NSWADT 9

REVISION DATE:

DIVISION: Equal Opportunity

APPLICANT:

Rowena Virveste

RESPONDENT:

Sir Moses Montefiore Jewish Home

FILE NUMBERS: 152 of 1996

HEARING DATES: 16/06/97, 17/06/97, 18/06/97, 15/07/97, 01/02/99

SUBMISSIONS CLOSED: 01/02/1999

DECISION DATE: 18/03/1999

JUDICIAL MEMBER: Graeme Innes AM Judicial Member

LAY MEMBER: Merilyn Alt Member

LAY MEMBER: Owen McDonald OAM Member

APPLICANT KEYWORDS: Race Discrimination - Employment

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Anti Discrimination Act 1977

APPLICANT REPRESENTATIVE: In person on 16/06/97, 17/06/97, 01/02/99 M Anstee instructed by Remington & Co on 18/6/97

RESPONDENT REPRESENTATIVE: R Moore of Cournsel

ORDERS: 1.Complaint dismissed on 1 February 1999.

2. Any application for costs to be made within 14 days of date of publication of decision.

DECISION:

Introduction

1 On 16 December 1994 Ms Rowena Virveste lodged a complaint under the NSW Anti-Discrimination Act 1977 ("The Act") alleging discrimination on the ground of race. The complaint was lodged against the Sir Moses

2 Montefiore Jewish Home (The Home) and related to Ms Virveste's employment at the home. On 26 April 1996 the President of the Anti-Discrimination Board declined to entertain the complaint further on the basis that it was lacking in substance under s. 90 (1) of the Act. The complainant requested that the matter be referred to the Equal Opportunity Tribunal (as it then was) for hearing under s. 91 (2) of the Act.

3 The complaint was heard by the Tribunal over five days, 16-18 June, 15 July 1997, and 1 February 1999.

Outline Of The Hearing Process

4 Prior to and at the directions hearing for this matter Ms Virveste was encouraged to meet with the Duty Solicitor available at the Tribunal when it became clear that she was not legally represented. Although she made attempts to obtain legal representation before the commencement of the hearing on 16 June she was unrepresented for the first two days of the hearing, and for the last day of the hearing.

5 The respondent was represented by Mr Moore of Counsel instructed by Ms Street, Aged Services Association of NSW (Industrial).

6 The Tribunal was well aware of the problems experienced by complainants conducting their own cases in this jurisdiction as it is not an uncommon occurrence. During the proceedings the Tribunal attempted at all times to minimise the resultant imbalance between the parties by explaining each step of the procedure, and by questioning witnesses where it felt that the complainant had not been able to thoroughly draw out the relevant evidence.

7 On the afternoon of 17 June 1997, when the complainant's case was completed and closed, and the respondent's witnesses had commenced giving evidence, Mr Tees, a solicitor, sought leave to appear for the complainant solely for the purpose of making an adjournment application. He advised that he had only received instruction that day, and that he sought a 3-4 week adjournment. He was unable to indicate with any certainty whether legal representation would be available to Ms Virveste if the adjournment was granted. He also argued that the complainant was under a great deal of stress as a result of both the process and her need to conduct her own case, and that this would be relieved if an adjournment was granted. However, he produced no medical evidence to support his submission.

8 Mr Moore opposed the application arguing that there was no certainty that the complainant would gain legal representation, that there was no medical evidence, and that it would cause great inconvenience to the Home. He stated that staffing at the Home was on a 24 hour basis, and that complicated and costly arrangements had been made so that staff could be available to give evidence.

9 The Tribunal refused the application. It would have been prepared to grant a short adjournment while Mr Tees received instructions, but was not prepared to lose the day and a half still available with only small prospect of legal representation for the complainant on later days. It formed the view that, whilst the complainant was under stress, this would be the case whenever the hearing took place, and that the level of this stress was difficult to assess without medical evidence. Further, it recognised the inconvenience which would be caused to the respondent, and the risk of a costs application by the respondent if the adjournment was granted.

10 On the morning of 18 June Mr Mark Anstee of Counsel was granted leave to appear on behalf of the complainant instructed by Remington & Co Solicitors. He advised that he was instructed to appear for the duration of the hearing. He again applied for an adjournment. He submitted that he wished to receive further instructions, that he wished to attempt to locate further witnesses, and that the complainant was suffering from stress and would have difficulty continuing with the case immediately. In support of the third submission he produced medical certificates from doctors Bruce Short and David Lam. Dr Short, who was not the complainant's treating doctor, certified that she was unfit for work for three days. Dr Lam, the complainant's regular GP, provided a certificate after speaking to the complainant over the telephone, which stated that the complainant was under great stress, and that she was unfit to continue with her court proceedings at this time.

11 Mr Moore again opposed the adjournment. He argued that the certificate from Dr Short did not refer to court proceedings, and that the certificate from Dr Lam was in quite general terms, and was provided after only a telephone call, so that this doctor would be unable to assess Ms Virveste's symptoms. He submitted that the complainant had had numerous opportunities to obtain legal representation at an earlier date, and that as Mr Anstee had been instructed the night before he should be in a position to continue. He foreshadowed opposition to any application for the complainant to re-open her case, and renewed his previous arguments.

12 The Tribunal again refused the application. It found the two medical certificates to be in very general terms. Neither referred to the complainants symptoms in any detail, or indicated that the stress of the hearing would be likely to be any less if conducted in three or four weeks time. It took the view that Ms Virveste would be under much less stress now that she had legal representation. It proposed that, in order to minimise the inconvenience caused to the Home by the complainants late introduction of legal representation, evidence should be taken from the respondent's witnesses for the rest of the day, but the complainant's application to re-open her case would be considered at that time or on a later occasion. It indicated that, if that application was successful, the respondent would have the opportunity to recall any witnesses it felt necessary.

13 When this decision was announced by the Tribunal Mr Anstee indicated that he was in some difficulty as the complainant's level of stress was such that she was unable to properly instruct him. This was not an issue which he had raised in his previous application because, according to him, he had not become aware of it until the Tribunal retired to make its decision. Mr Moore submitted that the complainant should return to the witness-box so that the Tribunal could assess her fitness to continue. The Tribunal adopted this course.

14 In answer to questions from the Tribunal the complainant indicated that she was not taking any medication for stress. She stated that she remembered being in court the day before but she could not remember why she was there, or any of the details of her case. In the circumstances the Tribunal determined that the complainant would not be receiving natural justice were the hearing to continue.

15 The matter was adjourned to 15 July for further directions. By this time the transcript was to be available, and the complainant's legal representative had had time to be fully instructed. It was hoped that the complainant's level of stress would be reduced, and she had a further opportunity to locate other witnesses.

16 On that day the complainant's representative applied to re-open her case, and this application was opposed by the respondent. These submissions were the subject of a written interim decision, brought down after an unfortunately lengthy delay on

15 September 1998, and the Tribunal does not propose to cover that ground in this decision. The result of the decision was that the complainant's application to re-open her case was not granted, with the exception that the complainant was given the opportunity to adduce affidavit evidence from two staff at the Mercy Family Centre from whom she received counselling, and from Dr Lam from whom she had received treatment. The Respondent was offered, but did not take up, the opportunity, to have these witnesses made available for cross-examination.

17 The hearing resumed on 1 February 1999 and the evidence sought to be led by the respondent before it made its final application was completed.

Statutory Provisions

18 The complainant alleged discrimination on the ground of her race in the area of employment in breach of ss. 7 and 8 of the Act. S. 4A of the Act, dealing with acts done for more than one reason, and s. 53 of the Act, dealing with vicarious liability, are also relevant.

19 Finally, s. 111, dealing with the dismissal of the complaint as lacking in substance, is considered. All of these sections are set out below.

"7 What constitutes discrimination on the ground of race

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1)(a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."

"8 Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which 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, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household."

"4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason."

"53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services."

"111 The Tribunal may dismiss frivolous etc complaints

(1)Where, at any stage of an inquiry, the Tribunal is satisfied that a 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.

(1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one does not wish to proceed with the complaint.

(1B) The Tribunal may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the Tribunal is satisfied that the person does not wish to proceed with the complaint.

Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry."

Background

20 The Home is situated at Hunters Hill, a suburb of Sydney. It contains eight wards with approximately 40 residents in each ward. It employs Registered nurses, Nurses Aids and Assistants In Nursing ("AINs").

21 Ms Virveste is of Filipino origin but is now an Australian citizen. She is a single parent with two sons living with her. Ms Virveste was employed at the Home as an AIN from 26 July 1994 to 5 March 1995.

22 During that time she worked on night shift.

The Evidence

Preliminary Matters

23 Ms Virveste alleged less favourable treatment on the ground of her race, and on the ground of her height which she asserted is a characteristic of the Filipino race. She led no specific evidence relating to the correlation between height and the Filipino race.

24 However, the Tribunal is prepared to take judicial notice of the fact that, in general, people of Filipino origin are of shorter stature than most other races. The Tribunal also notes that, from observation of Ms Virveste, she is of below average height.

25 Ms Virveste alleged that there was a general atmosphere of discrimination towards her on these grounds during her period of employment at the Home. She further alleges that specific events occurred which were a part of, or a result of, the discrimination. The Tribunal has decided to summarise the evidence as it relates to the general atmosphere and to each incident.

General Atmosphere Of Discrimination

26 Ms Virveste asserted that this was present from very early in her employment. She asserted that staff always "picked on her" and made mistakes themselves which they blamed on her. She also stated that many staff members complained that she was too short, and that it was difficult to lift patients with her.

27 Mr Andrew Edmonds, an AIN at the Home and a witness for the complainant, supported these allegations and stated that he heard many comments in the staff room and other areas of the Home about Ms Virveste. They were related to her size and race, and the fact that she could not lift properly.

July-September 1994

28 Ms Virveste alleged that on the first night she worked at the Home Sister Young, one of her shift supervisors, yelled at her and accused her of sleeping on the job. Ms Virveste denied that she was sleeping.

29 However, she did accuse Ms Campos, another staff member, of doing so.

30 Sister Young, who was the assistant Director Of Nursing on that evening and thus Ms Virveste's supervisor, gave evidence for the respondent. She is of Malaysian origin, and had worked at the Home for ten years. She stated that throughout this period she had never felt discriminated against on the ground of her race. She said that people of many races worked in the Home, and that it was like "a mini United Nations".

31 She denied having yelled at Ms Virveste on the first night or on any other occasion. She stated that, in the first week of Ms Virveste's employment, she did warn her (constituting the first disciplinary warning) for attempting to transfer a resident without assistance. She said that this is clearly contrary to the policy of the Home, and that Ms Virveste would have been made aware of this in her orientation. The resident in question did fall as a result of the attempted transfer, but was not injured.

32 Ms Campos, an AIN who worked with Ms Virveste and who was of Chilean origin, commenced working at the Home in 1990. She gave evidence for the respondent, asserting that during her employment there she had never experienced discrimination on the ground of her race. She denied that she ever slept on the job, noting that this would be a dismissable offence.

33 Ms Virveste stated that since the allegation of sleeping on the job staff "picked on her" all the time. She stated that she was never given a permanent area in which to work. However Mr Edmonds stated that all of the staff were moved around all the time. This was confirmed in the evidence of other staff.

34 Ms Virveste asserted that Ms Campos often criticised her because of her size. She would say "Rowena you are too short, when are you going to grow some more." She would also look Ms Virveste up and down emphasising her size. Ms Campos denied this. However, she stated that, working with Ms Virveste, she had observed that Ms Virveste did not lift residents using the correct lifting techniques.

October And November 1994

35 During this period Sister Young gave further evidence of Ms Virveste's breaches of the Home's policy. These included:-

· Wearing of jewellery, particularly long "drop" ear-rings, which was against the uniform policy and risked injury to both residents and Ms Virveste herself.

· The wearing of calf length boots which was against the Home's uniform policy. This was of particular concern to Sister Young as several residents had mentioned them to her as having connotations of German "jackboots" a sensitive issue for Jewish residents.

· The wearing of an overcoat over her uniform which was against uniform policy.

· Ms Virveste having her mobile phone at work.

36 Sister Lynn, the Deputy Director of Nursing, who also gave evidence for the respondent, confirmed that these were all breaches of the Home's policy. Sister Lynn also gave evidence of speaking to Ms Virveste in November 1994 about her frequent non-attendance at work when she was rostered on, particularly on Saturday nights.

37 Ms Virveste asserted that, although she had done these things, other staff also did them and were not reprimanded in the same way.

December 1 1994

38 The Complainant worked night-shift, and on the morning of 1 December two incidents were alleged to have occurred. The first involved a complaint by Ms Virveste about the treatment of a patient Ms Jaffe by Ms Campos. Ms Virveste alleged that Ms Campos pulled Ms Jaffe roughly out of bed, hit her and rubbed Ms Jaffe's faeces- which were in the bed- in Ms Jaffe's face. Ms Virveste alleges that she saw this occur.

39 Ms Campos denied this incident. It does not appear to have been reported to anyone at the Home, but Ms Virveste reported it to the Commonwealth Department of Health and the local police. The Department investigated the allegation and found Ms Virveste's complaint to have no substance.

40 The other incident involved a complaint by Ms Campos about Ms Virveste's lifting technique. Ms Campos alleged that when she lifted with Ms Virveste she (Ms Campos) had to take more than her share of the weight, and that this gave her a sore back. Ms Campos also alleged that a patient had almost slipped and fallen that morning as a result of Ms Virveste's poor lifting technique.

41 Ms Virveste denied that this was the case, and asserted that Ms Campos made this complaint because of Ms Virveste's race and height. Sister Young gave evidence that she drew Ms Virveste's lifting technique to the attention of Sister Cox, the nurse educator, who (Sister Young stated) monitored Ms Virveste's technique and suggested ways of improving it.

42 Ms Virveste alleged that Sister Young yelled at her that morning regarding her lifting technique. Sister Young denies this. Ms Virveste also alleged that Sister Cox, when discussing her lifting techniques, made references to her size and level of education. No evidence was led by the respondent to counter these allegations.

43 Sister Young gave evidence that, during her rounds that morning, she found Mr Edmonds still at the home about one and a half hours after he had completed his shift. When she asked him why he was still there he said that he was helping Ms Virveste as none of the other nurses would help her lift. Sister Young commented that there were six other nurses on duty who could help her and asked him to leave the home. He agreed to do this.

44 Ms Virveste stated that after she finished her work she met with Sister Young in the Director of Nursing's office. She complained to Sister Young about staff discriminating against her. Sister Young told her that she would have to resign, and wanted her to write out a resignation. She refused to do this.

45 Sister Young denied this version of events and stated that Ms Virveste did complain to her of discrimination against her by other staff that morning. She said that Ms Virveste threatened to resign, and Sister Young said that this was Ms Virveste's decision, but that she would have to put it in writing to the Director Of Nursing. Sister Young advised Ms Virveste of her own ethnic origin, and that she had experienced no discrimination at the Home. Ms Virveste stated that she would lodge a complaint with the Anti-Discrimination Board and left.

46 Ms Virveste stated that she went home very stressed. She went to see her doctor and was on sick leave for over a month.

December 6 and 7 1994

47 Sister Lynn gave evidence, obtained from records of the Home including reports prepared by supervisory staff at the time, of a visit to the Home on December 6 1994 by Messrs Virveste and Edmonds. Despite the fact that neither of them were rostered on, and that Ms Virveste was on sick leave, they were both in full uniform. They are alleged to have commenced interrogating staff at the Home, and were apparently asked to leave by Sister Parish, the sister on duty. Neither Ms Virveste nor Mr Edmonds denied these allegations.

48 On the same evening Ms Campos and Sister Lynn gave evidence that the tyres on Ms Campos' car were deflated by having small pieces of wood placed in the valves. Whilst no evidence was available as to who was responsible, it was implied that Ms Virveste and Mr Edmonds may have been involved in this incident. Both denied any involvement.

49 Ms Virveste's complaint was lodged with the Anti-Discrimination Board on 14 December 1994.

January To March 1995

50 During this period the respondent gave evidence, through Sister Lynn, of three further issues of unsatisfactory work performance. These were- The transferring of patients by Ms Virveste without assistance in breach of the Home's policy; continuation of breaches of the uniform policy regarding dress; and a failure to properly clean the pan-room. All of these were drawn to Ms Virveste's attention.

March 5 1995

51 Ms Virveste stated that on 4 March 1995, during her night-shift, she had been feeling unwell, and decided to sit down on a lounge chair in one of the resident's rooms. She stated that she was there for about five minutes when Sister Donlan came in and found her on the lounge chair.

52 The following day she was asked to go to Sister Lynn's office. Some form of disciplinary meeting took place at which two other staff were present, one to take minutes of the meeting and the other as a witness for Ms Virveste. Ms Virveste stated that Sister Lynn was abusive to her before, during and after the meeting, calling her a "bloody Asian" and referring to her education. Ms Virveste stated that Sister Lynn asked her to resign, but that she refused. Sister Lynn then asked her for her badge, which she refused to return, and escorted her from the property accompanied by a domestic staff member. Sister Lynn told her not to return to the Home.

53 Sister Lynn's version of events differs quite markedly. She stated that Sisters Parish and Donlan reported Ms Virveste "sleeping" or "resting" on a lounge chair in a resident's room which was contrary to the policy of the Home, and other incidents similar to those reported earlier. The reports of Sisters Parish and Donlan were provided.

54 Sister Lynn arranged a disciplinary meeting on 5 March at which two other nursing staff were present, one to take minutes and one as a witness for Ms Virveste. The situation was clearly serious, but at the beginning of the meeting Sister Lynn stated that she did not intend to terminate Ms Virveste's employment. The minutes of the meeting indicate that Ms Viverste was actually offered day shift employment. However, during the meeting Sister Lynn states that Ms Virveste was abusive and aggressive towards her, and it was clear that the issues between Ms Virveste and the Home were not going to be able to be worked through. Sister Lynn decided to terminate Ms Virveste's employment, and felt it necessary to escort her to her car accompanied by a member of the domestic staff.

Ms Virveste's Claims For Medical And Counselling Expenses And Loss Of Income

55 Ms Virveste claimed specific and general damages as a result of the alleged discrimination. She claimed medical expenses of $500, and loss of income for almost two years following the termination of her employment. She further claimed general damages because she stated that she had difficulty gaining other employment because of the bad reference for her given to other employers by the Home. Ms Virveste agreed that any loss of income would need to be reduced by the amount of benefit she had received from the Department of Social Security during the relevant period.

Findings

56 Following the completion of evidence from three of the four respondent's witnesses on 1 February 1999 the respondent made a submission that the Tribunal should dismiss the complaint as lacking in substance under s. 111 of the Act. At this time only one further witness, Sister Rankin, was due to be called by the respondent. A submission such as this is usually made after the completion of the complainant's evidence, and in those circumstances the case of Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 provides that each case must be considered on its individual circumstances, but that the Tribunal should consider whether the evidence led by the complainant, when taken at its highest value, would provide the complainant with a "remote possibility of merit".

57 In this case the Tribunal had the advantage of hearing three of the respondent's witnesses before the s. 111 submission was made, and therefore took the view that it could adopt the more usual approach of weighing the complainant's evidence against that of the respondent, and determining whether the complainant had made out her case.

58 In weighing the evidence the Tribunal took into account that the onus of proof rested with the complainant, requiring her to persuade the Tribunal that, on the balance of probabilities, she had been discriminated against in breach of the Act as alleged. It also took into account the provisions of s. 4A of the Act which provides that discrimination against the complainant on the ground of her race, and characteristics related to that race, need only be one of the reasons for the actions of the respondent. Finally, the Tribunal accepted that the staff of the Home, particularly the supervisory staff, were acting on behalf of the Home in the actions which they took relating to MsVirveste- see s. 53 of the Act.

59 The Tribunal had concerns with the credit of all witnesses. Whilst it appreciated the difficulties caused in the giving of evidence by the effluxion of time, it felt that- whilst blatant untruths were not told in the main- there was a tendency to "gild the lily" throughout the hearing. In general, the respondent's witnesses were a little vague when drawn into areas not covered by their written statements.

60 However, where direct conflicts in the evidence occurred, the Tribunal preferred the evidence of the respondent. Most of the complainant's evidence was uncorroborated, and the supporting evidence of Mr Edmonds was, in the Tribunal's view, tainted by his relationship with the complainant, which he described in his statement.

61 The Tribunal took the view that, whilst the complainant was unable to persuade it that she had been discriminated against on the grounds of her race, the overall situation was not "managed" as well as it might have been. In the Tribunal's view Ms Virveste was a somewhat difficult member of staff to manage- she was an "individual" with her own ideas, and tended to interpret communications with her in a negative light. This may have led, in the Tribunal's view, to a somewhat tougher application of the Home's policy to her than to other members of staff. The Tribunal was satisfied that, whilst some industrial issues may have existed, actions by the staff of the Home were not motivated by discrimination against Ms Virveste on the ground of her race. This view was supported by the diversity of ethnic backgrounds of staff working at the home.

62 The Tribunal therefore dismisses the complaint. The parties were advised of this decision on the final day of the hearing, and the above constitutes the reasons for the Tribunal's decision.

63 The respondent sought to reserve its right to apply for costs. The Tribunal granted this but ordered that any such application must be made within fourteen days of the date of publication of this decision.