Fraoucene v Gerald Caruana & Arthur Caruana t/as GAC Property Management Services [2005] NSWADT 1 (10 January 2005)

Last Updated: 18 January 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Fraoucene v Gerald Caruana & Arthur Caruana t/as GAC Property Management Services [2005] NSWADT 1


PARTIES: APPLICANT
Naima Fraoucene
RESPONDENT
Gerald Caruana & Arthur Caruana t/as GAC Property Management Services



FILE NUMBERS: 041042

HEARING DATES: 22-23/07/2004

SUBMISSIONS CLOSED: 31/08/2004



DECISION DATE: 10/01/2005

BEFORE: Needham J - Judicial MemberBolt M - Non Judicial MemberHiffernan N - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Bennett v. Everitt (1988) EOC 92-244
Director General of Education v. Breen [1982] IR 93
Dutt v. Central Coast Area Health Service [2002] NSWADT 133
Purvis v. State of New South Wales (2003) 202 ALR 133, [2003] HCA 62
Sleiman v. Kmart Australia Ltd [2003] NSWADT 21

APPLICATION: Race Discrimination - In work
Sex Discrimination - In work

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
K Eastman, Counsel

RESPONDENT REPRESENTATIVE: RESPONDENT
S Coleman, Counsel

ORDERS: 1. Gerald Caruana and Arthur Caruana t/as GAC Property Management Services substituted for "GAC Property Manager Services" as respondents
2. The complaint is dismissed.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Ms Naima Fraoucene ("Ms Fraoucene" or "the applicant") complained to the Anti-Discrimination Board on the grounds of sex, race and ethno-religious background on 20 February 2003. The respondent named in that complaint was "GAC Property Manager Services". At the hearing, it was established that the proper respondents were "Gerald Caruana & Arthur Caruana t/as GAC Property Management Services" and leave was granted to change the name of the respondent accordingly. The respondents carry on business as a designer and builder of project homes, under, inter alia, the name "Wincrest Homes".

2 Ms Fraoucene was employed by the respondents on a probationary basis from 18 September 2002 until 11 December 2002. The complaint named Mr Alan Torres, the Drafting Manager, as the person responsible for the alleged discrimination against Ms Fraoucene. The complaint raised a number of issues, which can be summarised as follows:-

(a) Ms Fraoucene was not welcomed in the company journal as were other employees who joined at the same time

(b) Ms Fraoucene and another employee, Manthee Chetty, had a dispute during her training period, and Mr Torres supported Ms Chetty

(c) After the dispute, Ms Fraoucene had difficulties with Mr Torres

(d) Mr Torres said to Ms Fraoucene that he preferred working with men rather than girls

(e) Ms Fraoucene was unjustly harshly treated over mistakes made which were similar to those made by men in the company

(f) Mr Torres reprimanded Ms Fraoucene for bringing a Koran to work, and reported that to Mr Downing, the Operations Manager. The book was not a Koran, but a book on architecture and Muslims in Spain

(g) Mr Torres made Ms Fraoucene’s life difficult until her employment was terminated on 11 December 2002, before her probationary period had expired

(h) Ms Fraoucene was not invited to the Christmas party, even though she contributed for the Social Club, and when she enquired about this, she was told that she did not "fit in"

(i) Ms Fraoucene alleges that the reasons she was dismissed were not, as were stated to her, problems with her work, but the fact that she was a woman, from Algeria, and a Muslim.

3 The complaint was referred by the Anti-Discrimination Board to the Administrative Decisions Tribunal on 27 February 2004. The matter was heard over two days on 22 and 23 July 2004.

4 The applicant, in her Points of Claim, cites the following heads of discrimination:-

(a) discrimination under s 24(1)(a) of the Anti-Discrimination Act ("the Act"), in that the applicant was treated less favourably than the respondent treated a male employee

(b) discrimination under s 7(1)(a), by treating her less favourably than it treated an employee who was not a Muslim

(c) discrimination under s 25(2)(b) and s 8(2)(b) of the Act, in that she was denied access to and limited opportunities for training and benefits

(d) discrimination under s 25(2)(c) and s 8(2)(c) of the Act, by subjecting her to a detriment

(e) discrimination under s 25(2)(c) and s 8(2)(c) of the Act, by terminating her employment.

5 The respondents, in their Reply to the Points of Claim, do not put in issue the facts that the applicant is a woman nor that she was born in Algeria and is a Muslim. The Reply says that the reason for the respondents’ failure to continue the employment past the probationary period was her "demonstrated inability to perform rudimentary drafting". They deny that the failure to include her name in the Gazette or to attend the Christmas party had any improper motive, and gives reasons for those matters. They deny any unfair treatment or limitation of work on "new projects".

6 Ms Fraoucene made a statement and was cross-examined before the Tribunal. The respondents relied on statements from Mr Robert Downing, the Operations Manager of the respondents; Mr Alan Torres, the applicant’s drafting manager; Ms Manthee Chetty, a co-worker of Ms Fraoucene; Mr Gregory Graves, a draftsperson and the editor of the Social Club Gazette, Mr Christian Medina, and Mr Ivan Tomic.

Tribunal’s Finding as to Facts

7 Ms Fraoucene was employed by the respondents after an interview with Mr Downing and Mr Torres in which she was asked, and provided information about, her ethnic origin. She was employed as an "architectural draftsperson" and Mr Ivan Tomic was employed in the same capacity and at the same time. Mr Tomic still works for the respondents. The applicant provided a resume (exhibit R7) in which she referred to her "extensive training Architectural knowledge and experience" and set out her graduate and post-graduate educational achievements in architecture and urban design.

8 The applicant’s duties were as a draftsperson. She was not employed as a designer. Her duties were to use the company’s software to make changes to standard designs as requested by clients and in keeping with the applicable local government and other requirements. At some stage she was given the respondents’ "Employee Handbook".

9 It is not disputed that the applicant was employed on a probationary basis. There is some dispute about whether she was terminated "summarily"; however, it is clear that her employment was terminated on 11 December, when her three-month probationary period expired on the 18th of December. She was paid until 18 December 2002.

10 On employment, the applicant was supervised by Mr Torres. The respondent had, as part of its work system, a method whereby employees would check each other’s work. The person checking Ms Fraoucene’s work was usually, but not necessarily, Mr Torres in the first instance. Her work was occasionally also checked by Ms Chetty and by Mr Tomic, even though these persons were not formally "supervising" her work. The evidence given by a number of witnesses, including the applicant, was that there was a co-operative system in place and that if a person had a difficulty with something they could ask for assistance from other employees. In particular, Ms Chetty was a quasi-official "mentor" for Ms Fraoucene in her early days of employment.

11 Mr Torres gave evidence, which we accept in general, that there were difficulties with Ms Fraoucene’s work in the first six or seven weeks. Those difficulties were not raised with Mr Downing, and we accept Ms Fraoucene’s explanation that any errors during that first period of employment were referable to the learning process Ms Fraoucene was undergoing. While Mr Torres said that the mistakes were "constant and repetitive and required counselling", the evidence does not necessarily reflect a great number or constant repetition of errors. The respondents tendered an example of drafting errors by Ms Fraoucene, and while it is clear from the evidence that a serious error was made by her (which was picked up and corrected in the checking process referred to above), no other significant evidence of drafting errors was tendered. However, we accept that the actual situation was somewhere between Ms Fraoucene’s evidence of a very few errors in the early days, and Mr Torres’ characterisation of continual errors, requiring counselling. While the written evidence showed only one example of an error, the fact of more errors than those admitted to by Ms Fraoucene was confirmed by other witnesses who gave evidence, including Mr Tomic and Ms Chetty. It is understandable that errors in the drafting process may not survive in documentation, because of the system of review which operated in the respondent’s workplace.

12 Mr Downing, Mr Torres and Mr Tomic all gave evidence of a procedure for appraisal of probationary employees. At the first of the formal appraisals, after four weeks, the assessment was on how the employee was settling in, rather than on formal competence. An assessment of technical competence would be made at 8 weeks. It is consistent with this evidence that Mr Downing did not become aware of the errors until later in Ms Fraoucene’s employment, although it is not clear whether he was told at the 8 week assessment or at some other time of her difficulties in completing work to Mr Torres’ satisfaction.

13 On 7 November 2002, some seven weeks after commencing employment, Ms Fraoucene and Ms Chetty had a disagreement. Both Ms Fraoucene and Ms Chetty gave evidence of the disagreement. Ms Fraoucene said that she had a conversation with Mr Torres in which she asked for more responsibility, including, in particular, working on a Statement of Environmental Effects ("SOEE"). She said that Mr Torres agreed that she could ask Ms Chetty to show her how to do it. Mr Torres denied the conversation. While the applicant submits that "her recollection should be preferred", the Incident Report prepared by Mr Torres shortly after the incident does not mention the conversation except to note Mr Torres’ comment that "apparently, Naima told me that this was my instruction to her". The Tribunal finds that the Incident Report is not consistent with Mr Torres having the asserted conversation with the applicant, and that it did not take place.

14 Ms Fraoucene went to Ms Chetty and asked to be shown a file. Ms Chetty refused. There is some disagreement between the witnesses over what was actually said, but it is clear that SOEEs were part of Ms Chetty’s job and she was not prepared to provide a file to Ms Fraoucene without Mr Torres confirming that he wished her to do so. The two then had an argument. Each of them was upset by the argument, Ms Fraoucene reporting the terms of it to Mr Torres soon after it happened. Mr Torres then approached Ms Chetty to discuss the matter.

15 The Tribunal was most impressed with Ms Chetty’s evidence and her demeanour. She answered questions in a straightforward manner and where she could not recollect something, was happy to say so. Where her recollection and that of Ms Fraoucene differed, the Tribunal accepts the evidence of Ms Chetty.

16 Accordingly, the Tribunal finds that the incident occurred as set out in the statement of Ms Chetty and in her oral evidence. She says that the applicant said to her:-

"Applicant: Manthee, Alan wants me to do the Statement of Environmental Effects for the first plan job I just finished".

Chetty: Alan hasn’t told me of this. I will check with him first.

Applicant: Look I am going to do it. Just show me where it is on the computer.

Chetty: Not until Alan okays it".

17 Both the applicant and Ms Chetty had a meeting with Mr Torres in the Boardroom the next day, 8 November. Mr Torres says that he asked each party to allow the other to tell her story without interruptions. While Ms Fraoucene was able to tell her story without being interrupted, the same was not true for Ms Chetty. In her handwritten notes on the Incident Report, Ms Fraoucene comments that "It is true. When I heard all the accusations about me, I was weak also, fasting [it being Ramadan]. I couldn’t control myself. I forgot about my manager but the day after I apologised and I apologised to Manthee [Chetty] also" (explanations in [square brackets] added). The parties each agree that Ms Fraoucene said that, in effect, her religious beliefs did not enable her to lie, and that Ms Chetty should not lie. Mr Torres says that he replied to her that lying was not acceptable, no matter what religion or culture you came from. The applicant submits that such a comment was "dismissive". There was no handwritten comment by Ms Fraoucene on this part of the report about lying.

18 In the Tribunal’s view, the Incident Report can be accepted as a contemporaneous record of the argument and the attempts by Mr Torres to sort the matter out between Ms Fraoucene and Ms Chetty. It was signed by Ms Fraoucene and by Ms Chetty, indicating that, at the time, they each accepted the account. Ms Fraoucene says that she signed the report because she was directed to. Her later, handwritten comments deal more with explanations of her conduct rather than with accuracy issues or with denials of matters in the Report. For instance, as noted above, the handwritten notes explain why Ms Fraoucene interrupted Ms Chetty rather than denying that she did so. There is nothing in the meeting notes which, in the Tribunal’s view, indicate that Mr Torres treated Ms Fraoucene unfairly or that he took Ms Chetty’s side. In fact, the Incident Report shows an attempt to broker a peace between the two and to hear both sides. In the circumstances, the Tribunal accepts that the Incident Report is an accurate statement of the conduct of Mr Torres, Ms Fraoucene and Ms Chetty in relation to the argument on 7 November.

19 Ms Fraoucene also sent an email to Mr Torres setting out comments on the meeting of 8 November and the Incident Report. While there are some differences from the account of Mr Torres and Ms Chetty, again, there is nothing in that email which alleges that Mr Torres took Ms Chetty’s side, nor that the fundaments of the argument were significantly different from what is set out above (with the exception of the alleged request to Mr Torres to have Ms Chetty show her the SOEE).

20 Ms Fraoucene alleges that after the meeting of 7 November, the attitude of Mr Torres changed towards her and he started to make her work life difficult. She says that she believes that "a reason for his attitude changing was because of her sex and race" (applicant’s submissions, paragraph 19). She says that from this point, he "treated her unfairly" (paragraph 21). She says that he "told her that her colleagues were better than her, he shouted at her, said he was fed up with her, criticised her in front of co-workers and he did not give her the chance to express herself (par 21). She also says that he did not provide her with a chance to work on a range of projects, such as SOEE and landscaping, and that he preferred to work with men rather than women, and that she did not fit into the company. She continued to submit her drawings to Mr Torres and others for supervision. She says that her work continued to improve. Mr Torres says that she required constant supervision and changes to her work. Mr Tomic, and to an extent Mr Medina, said in their evidence that her work was not very good and needed changes. Ms Fraoucene agreed, under cross-examination, that her work was regularly supervised and she was told to "change this and that".

21 Ms Fraoucene received a copy of the Social Club Gazette in November 2002. Her name was not included as one of the new employees. In her original complaint, she says that "Alan Torres ordered to Gregory to not put my name and my background (skill and education) in the Journal and not even a welcome". She resiled from this evidence somewhat in cross-examination, saying that she assumed that that was the case. Mr Graves, the editor of the journal, gave evidence that he was in charge of the journal and made the decisions as to content. He said that it was not a monthly journal, and space was limited, and Ms Fraoucene would have gone into the next month’s journal. Mr Torres confirmed that he had no editorial control over the journal.

22 There was much evidence and time devoted to Ms Fraoucene’s allegation that she was reprimanded for bringing a Koran to work. It was common ground that she did not, in fact, bring a Koran to work. The book was entitled "The Muslims in Spain" and was about Muslim influences on architecture. The applicant says that she was "reprimanded" by Mr Torres. This was denied by Mr Torres. There was a great deal of confusion about when the book in question was brought to work, and how various people found out about it. Despite the concentration on this issue, there is insufficient evidence to conclude that there was a reprimand by Mr Torres on this issue. Even on the applicant’s account in her statement, Mr Torres did not "reprimand" her, but merely asked her, "Did you bring a Koran at work?". He makes no comment, favourable or otherwise, on her denial of bringing a Koran into work, and no reprimand ensues.

23 On 11 December, the applicant was called into Mr Torres’ office, and her employment was terminated. Mr Medina was also in attendance at that meeting. She was not warned that her employment was at risk, nor had she received any warnings. Ms Fraoucene said that she was given no reason for her termination. Mr Torres, whose evidence was confirmed by Mr Medina, said that he told her that her work showed too many mistakes, she needed more than minimum supervision and she did not accept instruction well.

24 Ms Fraoucene was upset that her employment was terminated and went to see Mr Downing. He says that he informed her of the same reasons for her termination. The applicant says that Mr Downing said that "she did not fit in" and was over-qualified for her job, which Mr Downing denies. She was given a reference which made no reference to her mistakes or need for supervision, but which said that "Naima was able to competently complete the tasks she was set" and referred to the fact that Ms Fraoucene was not offered a job at the end of her probationary period.

25 Ms Fraoucene was not invited to the staff Christmas party. She says that as a member of the Social Club she was entitled to go, and that her non-invitation was at the behest of Mr Torres. The evidence from Mr Downing was that former employees were not invited, and that it was a company party, not a Social Club party. The company paid for the party, not the Social Club, and in his view it was inappropriate to have former (fired) employees attend. The Tribunal accepts this explanation.

26 There was much cross-examination as to the effect of the Handbook and the application of its provisions to probationary employees. Paragraph 2.4 reads, relevantly:-

"Anyone moving into a new job goes through a period of adjustment. The workplace is strange, the people are different, the customs are confusing and the work seems complicated. Our experience has shown that the first three months are the most critical. It is during this period that it becomes apparent that the person and the job are, or are not, well matched.

From the day you start work we want you to feel that you are one of us. It usually takes some time to determine whether or not you are going to like your place of employment, your job and the people you work with. It also takes us time to determine whether or not your performance is going to be satisfactory and whether you can be a successful member of our team.

Consequently, for the first three months you are considered a probationary member of employment. If for some reason you are not fitting in with the team or your work is unsatisfactory during this period, you may be offered a transfer to a different job within the company or your employment may cease within the company. In either case, you will receive a complete and clear explanation".

Paragraph 2.5 provides:-

"Once you are a permanent employee, your performance will be monitored by your manager on a periodical basis ...

Paragraph 2.7 deals with Disciplinary Action/Counselling and provides a protocol of counselling, followed by an Oral Warning, a follow-up meeting and then a Written Warning. Paragraph 2.8 deals with Termination of Employment (Dismissal) and provides that "An employee will receive adequate warnings before termination, unless an employee commits an act of serious misconduct". It was agreed that Ms Fraoucene had not committed such an act.

27 Mr Downing gave evidence that he wrote the Handbook and that he viewed paragraph 2.4 as being the paragraph that governed dismissal of probationary employees. While a subjective view is of some relevance, the Tribunal takes the objective view that Mr Downing’s interpretation is supported by the text and context of the document. Mr Downing says that there were no other comparable jobs available for Ms Fraoucene, and so there were no opportunities for a "transfer" as envisaged as an alternative to termination under paragraph 2.4.

28 There are many discrepancies in the evidence as to what was said, and by whom. As pointed out above, the only written contemporaneous evidence is Mr Torres’ "incident report" which confirms his and Ms Chetty’s version, rather than Ms Fraoucene’s. Where there is a conflict between the oral versions of the meeting and the incident report, the Tribunal is inclined to accept the written report. Ms Chetty, as noted above, impressed as a fair and honest witness, as did Mr Downing. Mr Tomic also gave thoughtful evidence which was supported in material particular in the evidence. The Tribunal accepts the evidence of each of those witnesses where their evidence does not accord with that of Ms Fraoucene. In particular, the Tribunal accepts that Mr Downing did not say that Ms Fraoucene "did not fit in", and that Mr Torres did not tell her that he preferred working with men rather than girls. While it is not the Tribunal’s view that Ms Fraoucene was lying or trying to mislead the Tribunal, she had a tendency to avoid questions the answers to which were not helpful to her, and tended to repeat "set" versions of her story. She tended to exaggerate and to make assumptions (for example, that Mr Torres had told Mr Graves to leave her out of the Social Club journal) rather than to base her opinions on coolly observed fact.

Breaches of the Anti-Discrimination Act

29 The applicant alleges that Ms Fraoucene was treated "less favourably during her employment and dismissed because of her sex, race or ethno-religious origin, or a combination thereof".

30 The Tribunal finds that the applicant is a woman of Algerian nationality and of Muslim ethno-religious background (see Sleiman v. Kmart Australia Ltd [2003] NSWADT 21 at [15]). The Act applies to probationary employees as well as to permanent employees. The respondents accept that the Handbook forms part of the applicant’s contract of employment.

31 The disputed questions in this case are whether, firstly, there was "less favourable treatment" of the applicant by the respondents, and, if so, whether a reason for that treatment of the applicant was her race, sex, or ethno-religious background. The discrimination alleged is direct discrimination.

32 The applicant says that opportunities were denied her such as the opportunities to work on particular projects, and the opportunity to be considered for a transfer (see s 8(2)(b) and 25 (2)(b) of the Act). Further, she has suffered a detriment, or less favourable treatment, in that she was:-

(a) dismissed

(b) shouted at and treated unfairly by Mr Torres

(c) excluded from the Christmas Party; and

(d) omitted from the Social Club Gazette

(e) reprimanded for bringing the Koran to work

(f) told by Mr Torres that he preferred working with men than girls

(g) told by Mr Torres and Mr Downing that she did not fit in.

33 As will be clear from the above recitation of the facts found by the Tribunal, the applicant fails at the first hurdle on a number of grounds. The Tribunal does not accept that she was treated unfairly or shouted at by Mr Torres, or that he told her that he preferred working with men rather than girls, and that she did not fit in. There is no evidence, except the applicant’s statements, that that was so, and the onus is on the applicant to prove her case. The Tribunal prefers the evidence of Mr Torres and other employees who gave evidence from the respondents to that of Ms Fraoucene, for the reasons given above. The evidence from each of the employees (and a former employee) who gave evidence for the respondents was that nothing of the kind happened. Each of them was cross-examined on their recollection. Further, the ground of denial of opportunities also fails at this point. Mr Downing gave evidence that there were no other jobs at the grade at which the applicant had been employed available, and no other evidence was sought on this point. The applicant was employed to "create and amend working drawings to accompany development applications to local councils", and this is what she was asked to do. The Tribunal has found that she did not ask Mr Torres to be able to undertake SOEEs, and so Ms Chetty, by not providing her with the file she requested, was not denying her an opportunity by failing to so provide her. Further, as set out above, even on her own account the applicant was not "reprimanded" for bringing a Koran to work.

34 That leaves the three "detriments" of dismissal, exclusion from the Christmas party and omission from the Social Club journal. Each of these things is capable of being a "detriment" or "less favourable treatment" for the purposes of the Act.

35 The next step is for the Tribunal to determine whether the three "detriments" show that she was treated less favourably during her employment than a man and/or person who was not of her race or ethno-religious background was treated, in the same or not materially different circumstances (see s 7(1)(a) and 24(1)(b) of the Act).

36 The Applicant says that none of her co-employees were treated in the way in which she was treated, in that they were invited to the Christmas party and that the new employees were welcomed in the Journal. She points to Mr Tomic, a person who was employed at the same time as she was, was not terminated and was given extra responsibilities during his probationary period. There is no real clarity in the evidence whether any other persons were terminated during the probationary period - Mr Torres said that there was one other person, but there is no other evidence of that fact. In relation to the three "detriments", the applicant was treated less favourably than male and non-Muslim employees.

37 The final step is to reach, on a basis of comfortable satisfaction as to the facts, a finding that the detrimental treatment of the applicant has a causal relationship with the applicant’s race, sex, ethno-religious background or a combination of the three. It need not be the "sole or dominant" reason - s 4A of the Act. The onus is upon the applicant to prove a that the above factors had a "causally operative effect" on the actions of the respondent - see Director General of Education v. Breen [1982] IR 93 at 95, Purvis v. State of New South Wales (2003) 202 ALR 133, [2003] HCA 62 at [193]- [167] per McHugh and Kirby JJ and [234]-[236] (per Gummow, Hayne and Austin JJ). It is sufficient that the applicant’s race, sex or ethno-religious background is a cause, not necessarily the sole cause, of the defendant’s conduct.

38 This case is one where there is no overt or stated evidence of any discrimination on unlawful grounds. While the applicant submits, correctly, that it is rare that a case will have a clear statement of such a reason for conduct and that the Tribunal must go behind the expressed or stated reasons to the real reason behind the behaviour, it is difficult for an applicant to succeed where there is no overt evidence at all. Counsel for the applicant set out, in her impressive written submissions, an analysis of authority for the above proposition starting with Bennett v. Everitt (1988) EOC 92-244 and travelling through Dutt v. Central Coast Area Health Service [2002] NSWADT 133. This Tribunal adopts the analysis in Dutt at [70] where a list of considerations as to the drawing of inferences was set out. Those considerations are:-

"i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts

ii. an inference must be reasonably drawn on the basis of the primary facts

iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference

iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof

v. it is not enough that the inference is a mere possibility: it must be one of "probable connection"

vi. the inference must be a logical one, and not supposition

vii. an inference cannot be made where more probable and innocent explanations are available on the evidence."

39 The applicant feels strongly, and no doubt genuinely, that she has been the subject of unlawful discrimination. It is trite to say that mere feelings of discrimination do not establish the fact of discrimination. There must be primary facts from which the proper inferences can be drawn. When the applicant’s allegations are viewed objectively, it is clear that the required causal nexus cannot be drawn. We will deal with each of the remaining "detriments" separately.

40 As to the exclusion from the Christmas party; the Tribunal finds that the explanation of Mr Downing that (in particular) recently terminated employees were not invited to the Christmas party is a more probable and innocent explanation for the lack of an invitation than discrimination on unlawful grounds. Mr Downing said that the only persons invited to the Christmas party were current staff members, and no evidence to the contrary was brought by the applicant.

41 As to the failure to welcome her in the staff journal; again, there is an innocent and probable explanation for this. There is no evidence that Mr Torres, or indeed any other member of the managerial staff, had any editorial input into the Journal at all. The company structure document shows that the respondents’ business was a large and multi-cultural one, and Mr Graves gave evidence that the failure to include Ms Fraoucene was inadvertent, and that had she stayed on she would have been included in the next edition of the journal, which came out on a sporadic rather than regular basis.

42 As to the dismissal; each of Mr Torres, Mr Downing and Mr Tomic gave evidence that the applicant’s work was such that she required corrections, supervision and changes to her work. The applicant agreed that changes to her work were made. The file produced by the respondents was pointed to by the Applicant as one undertaken in the early days of her employment, and notable in that it was the only file produced. This is explained by the respondents on the basis that the very nature of the work militated against the keeping of records of errors; the design process was an iterative one, and mistakes were erased by the next version of the plans.

43 The applicant points to a number of elements which, it is submitted, support an inference that her sex, racial origin or ethno-religious background were part of the reason for the detriments. The Tribunal has considered these factors but do not accept that any of them show, either separately or together, that there was a causal nexus so as to constitute direct discrimination. On the contrary, a number of the factors raised are not correct (for example, that Mr Baterseh, a man, was not reprimanded for incorrect use of the checklist, when Mr Torres said that he was) or, in the Tribunals’ view, those factors go to support the acceptance of the respondents of a multicultural and gender-neutral workplace (for example, the fact that the applicant’s gender was known to Mr Downing and Mr Torres on her application, and that they discussed her ethnic origin and faith on her application). The evidence is overwhelming that the respondents ran a business which was, while not blind to the factors of race and faith, openly welcoming of a multicultural workforce.

44 Each of the remaining three "detriments" which the Tribunal has accepted were suffered by the Applicant has:-

(a) no direct evidence of unlawful discrimination as a reason for it

(b) no logical basis for any inferences to be drawn as to unlawful discrimination; and

(c) an alternative, believable and innocent explanation for the conduct.

45 Accordingly, the Tribunal is unable to draw the requisite causal nexus between the detriments suffered by the applicant, and the applicant’s case must be dismissed.