Thompson v Courier Newspaper Pty Ltd [2005] NSWADT 49 (7 March 2005)

Last Updated: 13 October 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Thompson v Courier Newspaper Pty Ltd [2005] NSWADT 49


PARTIES: APPLICANT
Christine Thompson
RESPONDENT
Courier Newspaper Pty Ltd



FILE NUMBERS: 031043

HEARING DATES: 3-5/11/2003, 2/02/2004

SUBMISSIONS CLOSED: 30/04/2004



DECISION DATE: 07/03/2005

BEFORE: Innes G - Judicial MemberBolt M - Non Judicial MemberWeule B - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

APPLICATION: Sex Discrimination - In work
Sexual Harassment - In workplace
Victimisation

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
L Karp, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
J Tamplin, agent

ORDERS: The Tribunal finds that the respondent has discriminated against the applicant in breach of the Anti-Discrimination Act 1977, by victimising her and treating her less favourably on the ground of her sex. It orders the respondent to pay to the applicant $6825 within 21 days of the date of this decision.


Reasons for Decision:

REASONS FOR DECISION

1 Preliminary

1 On 23 November 2000 Ms Christine Thompson lodged a complaint under the Anti-Discrimination Act 1977 ("The Act") against Courier Newspapers Pty Ltd. The complaint alleged that she had been discriminated against by the group, who were then her employer, on the grounds of her sex, and that she had been sexually harassed. She lodged a further complaint on 11 December 2000 that she had been victimised in breach of the Act. On 28 September 2001 she lodged a final complaint of victimisation following her dismissal from her employment.

2 The President of the Anti-Discrimination Board (ADB) investigated the complaints, and on 26 September 2002 determined that part of her first complaint was out of time. He determined that there was not good cause for him to consider that part of the complaint. He therefore did not consider any of the allegations in the complaint relating to events occurring prior to 23 May 2000. Conciliation by the President was unsuccessful. He referred the complaints to the Administrative Decisions Tribunal in March 2003.

3 The complaints were heard by the Tribunal on 3, 4 and 5 November 2003 and 2 February 2004. Mr Karp represented the applicant, and Mr Tamplin the respondent. The last of the written submissions filed by the parties was received on 30 April 2004.

4 On 23 November 2004, just prior to the decision being brought down, the applicant sought to re-open her case due to an alleged contradiction between evidence given by Mario Cortassa, one of the respondent’s witnesses in this hearing, and evidence given by him in a hearing of the Industrial Relations Commission. The Tribunal decided that it would not be necessary to re-open the hearing as it was satisfied that Mr Cortassa had contradicted his statement on the point during his cross-examination. Details of this are set out in the summary of his evidence at 3,4 in this decision. The Tribunal was of the view that there was ample evidence before it on the point in issue, and it was able to make its decision without reference to the Industrial Relations Commission transcript.

2 Applicant’s Evidence

2,1 Introductory Evidence From Both Parties

5 The respondent in this matter published a number of free suburban and other newspapers throughout the Sydney metropolitan area. Most of them were published on a weekly basis. The publications were a mix of news and advertisements. Because they were free publications, the company's sole revenue was gained from the advertisements it sold. At the time of Ms Thompson's employment the operation was based in Alexandria.

6 The operation consisted of pre-print, which included preparation of advertisements; print which was done by Hannan print (a separately owned company on the same Alexandria site); and post-print. Such publishing requires complex production and is a low margins business. As such, scheduling and timing can have an impact on the profitability of the business.

7 As part of the pre-print operation the respondent employed a group of graphic artists to design and prepare advertisements which were published in these newspapers. Staff in this area (the Comp room), which was the area in which the applicant worked, prepared advertisements for numerous publications. At the time of Ms Thompson’s employment around 70-80% of advertising was made available digitally. The company utilises computer technology to produce the ads on a screen, they are then printed off and sent back to the client for their endorsement. If the ad is endorsed, then it is put into the paper and on a specific page and in a specific position on that page by an electronic system of "pagination". This pagination system is called the Millennium system.

8 The preparation of these advertisements was done on two different computer systems- the Breeze system and the Mac system. The Breeze was an older system, unique to the respondent, and its usage was reducing at the time of Ms Thompson's employment. The Mac system was more universally used in the printing and advertising industry. More and more work came in from advertisers already set out using Mac computers, so the Breeze became less and less relevant.

9 There was a third system- the Property Path system - which required material to be typed onto an internet site run by the company.

10 The Millennium system was used for composing, setting out and paginating the contents of the publication. It also automatically generated the folio. The Millennium system was thus an integral part of the publication process for all publications except The City Weekly, which was manually paginated.

11 The systems used did not directly interface. Material was prepared on either the Breeze or the Mac system, and then delivered to the Millennium system where the pagination was carried out. If there was a mistake in an advertisement, or it was the wrong size for a particular page, this could not be rectified on the Millennium system. The ad had to be sent back to the Breeze or Mac system, changed, and then returned to the Millennium pagination system.

12 Advertisements to be prepared were placed in "job bags" in a basket rack system. People preparing the ads took a job from the rack, keyed it into the system, and returned the job bag to another rack. The ads were then sent back to the customer for confirmation by the sales staff.

13 These job bags represented the physical or paper part of the advertisement, and accompanied its production on the computer systems. The job bags were placed on the racks in the order that they needed to be produced so that the relevant newspaper could be sent to the printer page by page. It was therefore important that job bags be taken from the rack in correct order, and placed on the completed rack once the work had been completed.

14 The Operations Director for the respondent was Mr Gareth Morgan. His office was adjacent to the "Comp room" where Ms Thompson worked. Mr Mario Cortassa was the afternoon shift Supervisor. This was the shift on which Ms Thompson worked. Mr Steve Yeates was the production manager for the whole pre-press operation.

15 Other employees on Ms Thompson’s shift included Mr Greg Nutt, Mr Greg Doyle, Mr John Thompson, and Ms Carmel Cole.

16 Ms Thompson was an experienced graphic artist. She worked for the respondent from 3 May 1999 to 27 April 2001.

2,2 Christine Thompson's Evidence

17 Ms Thompson’s employment with the respondent commenced on 3 May 1999. She lodged her first complaint with the Board on 23 November 2000. Because the President of the ADB did not accept her complaint out of time, the Tribunal took any evidence of matters occurring prior to 23 May 2000 as background. It has not referred to that material in this decision, apart from where such background may be relevant to the actual complaint.

18 Ms Thompson's third complaint to the ADB referred to her termination of employment as victimisation. However, she did not plead this issue in her points of claim, presumably because it had been dealt with in her industrial claim prior to the hearing of this complaint. The Tribunal has therefore not dealt with that complaint, and not included information regarding it in the summaries of evidence.

19 Ms Thompson gave evidence that she was employed as a Mac operator, and produced an advertisement for the job for which she applied supporting this assertion. She asserted that, during her interview, she was asked if she would mind training on the Breeze system, to which she replied that she would not. She stated that she did not know, and was not told, that most of her work would be on the Breeze system. She further denied that it was made clear to her during the interview that the job was for a Breeze operator.

20 Ms Thompson stated that she spent the first three months of her employment being trained on, and working on, the Breeze system. This training consisted of working from a manual, and some specific assistance from Carmel Cole who was a co-worker. Then, when a vacancy arose, she transferred to work on the Mac system. She scored highly on her three-month probationary assessment. This assessment, which was tendered, referred to her as a Mac operator.

21 In August 1999 Ms Thompson stated that she wrote to the respondent, complaining about the fact that from the time she moved to the Mac system she was asked to do a great deal of typing, and that this work should have been given to a designated typist. She stated that this treatment did not occur to male employees working on the Mac system. She asserted that from this point on she was marked down as a trouble-maker. The Tribunal only notes this allegation - as well as the previous paragraphs of evidence - as background, as it was outside the period of complaint.

22 Ms Thompson divided her complaint into a number of areas:

2,2,1 Training

23 Ms Thompson alleged that in around May 2000 Mr Cortassa called for volunteers to learn the Millennium system. Ms Thompson volunteered as did two male employees. She said that they were trained and she was not. She asserted that following this two new male employees were trained on the system. Finally she said that Mr Nutt, who had not volunteered, was trained.

24 Ms Thompson wrote to Mr Morgan about this situation on 2 November 2000. During that month she was offered training on the system, but the trainer was to be Mr Nutt, who she said was still in training. Because all others had been trained by someone who had completed their training she rejected the offer.

25 Ms Thompson further asserted that Mr Cortassa told her that she needed to be proficient on the Breeze system before being trained on the Millennium, a requirement which she stated did not apply to male employees.

26 She stated that her inability to use the Millennium system impacted on her when she was working at weekends and fewer staff were available, because she would sometimes be requested to do work on the Millennium. She recalled two incidents when she had been working alone, and had been requested to do work on the Millennium- the presses were held up while she completed this work. Further, those trained on the Millennium received an extra allowance which she did not receive.

27 Ms Thompson also stated that, despite her early request to Steve Yeates for training on Property Path, she was denied such training until it had been given to all of the male employees in the Mac section.

2,2,2 Overtime

28 Ms Thompson asserted that from the beginning of her employment she was disadvantaged because overtime was not made available to her as readily as others received it. She accepts that she was reluctant to work on Saturdays due to religious convictions, but that she worked other times on the weekend.

29 Mr Morgan advised her that she was not allowed to work overtime alone due to safety reasons. This precluded her working after 11 pm at night. However, she stated that men were allowed to work alone in this period, and in fact required to on some occasions.

2,2,3 Cabcharge

30 Ms Thompson lived on the Central Coast. She stated that she did not always drive because free on-site parking was not made available to her, despite several requests. She stated that she was not provided with Cabcharge dockets to get a cab late at night to Central where she caught her train. However, a male employee was provided with these dockets to get a cab home to Cremorne.

2,2,4 Allocation of work

31 Ms Thompson asserted that from the time she started work on the Mac system, she was required to do a disproportionate amount of typing or clerical work. She stated that male employees would set the graphics in an advertisement, and that it would then be handed to her by a sales rep or Mr Yelland so that she could complete the typing in the body of the advert. Ms Thompson stated that this was because a number of the male operators could not type well, or preferred not to type. She tendered a skill sheet prepared by Mr Cortassa which appeared to support this contention.

32 Ms Thompson agreed that this situation was ameliorated to some extent when a designated typist was employed, but asserted that she still did more than her share of this work.

33 She told of an occurrence in January 2001 when she complained about the number of ads she had to type. She was directed by Mr Cortassa to give them to the typist which she did, but when she returned to her desk after her break found further ads with only typing placed on her desk. She refused to do this typing, saying she had done her share, and a meeting was called which involved Mr Morgan.

34 Ms Thompson stated that she was severely reprimanded at this meeting, without being given the chance for an explanation. Ms Cole found her crying in the ladies toilet, and - along with Mr John Thompson - supported her to go back to Mr Morgan and explain what had occurred.

35 However, Ms Thompson stated that, following these meetings, further discussions occurred involving Mr Morgan in February 2001. She asserted during these discussions that she was being discriminated against, and that she had a basis for action in this regard. Mr Cortassa was given the task of allocating work. She stated that he continued to allocate her more than her share of typing. She asserted that this continued until her employment ended with the respondent.

36 Ms Thompson further stated that she was required, on more than one occasion, to file job bags when other employees were not. Her performance in this regard was monitored far more than other employees. She alleged that she was, on occasions, watched and required to return each job bag to the rack after she had completed it. Whilst she understood that this was correct procedure, she was well aware that most other employees took a number of job bags, completed them, and then returned them in a batch.

37 Finally, Ms Thompson asserted that she was required to return to the Breeze system more often than male employees, and that when this occurred she was monitored whereas male employees asked to do this were not.

2,2,5 Exposure to pornographic material

38 Ms Thompson stated that during the second half of 2000, after the apprentice was moved to afternoon shift, she began seeing pornographic images on his computer screen. They consisted of naked women, and parts of female anatomy. The apprentice sat directly behind her, so she saw them when she turned to answer the phone or to collect new work. Ms Thompson stated that others put such images on their screens, but not as often as the apprentice. She was occasionally aware of groups of men gathering around a computer screen, looking at such images, and laughing.

39 Ms Thompson stated that she complained to Lindsay Spooner, the day supervisor in the Mac section, but that no action was taken. She then complained to Greg Walsh, the day supervisor in the scanning section. Still no action was taken, and she was forced to endure these images, as well as a greater workload due to her male counterparts being otherwise engaged, until her employment ceased.

40 In response to assertions from the respondent’s witnesses that employees were not able to access the Internet from their computers, and thus obtain such images, Ms Thompson stated that such access was possible. Files could be downloaded from the internet on several computers and then circulated to others. She produced a memo listing passwords for employees, supporting her assertion that many employees had internet access.

2,2,6 Job opportunities at Chatswood

41 Ms Thompson stated that in November 2000 the respondent advertised for people to transfer to premises in Chatswood where The Sydney Weekly work was to be transferred. Although she applied for what was essentially her own position, she was not given an interview. The person selected to be supervisor had less experience than Ms Thompson but was male.

2,3 John Thompson’s Evidence

42 John Thompson gave evidence that he had worked in the printing industry in New Zealand and Australia since 1965. He was not related to the applicant, but had been employed as a graphic designer in the same area as her for the whole of her period of employment. He began as a Breeze operator, but graduated to the Mac system.

43 Mr Thompson stated he had observed that the applicant was assertive. She demanded what she saw as her rights within the workplace, and management resented her assertiveness, and her ambition. He stated that she was singled out for intimidatory treatment because of this assertiveness.

44 Mr Thompson further stated that the applicant was made to do clerical work, which she objected to doing. He distinctly recalled her being visibly upset at being instructed to file job bags by Mario Cortassa. This occurred mid evening (8,00 -- 9,00 p.m.). She was the only person asked to do this, and he recalled that Mr Cortassa had been vocal and agitated about it, although not as angry as he could get. There were a number of males in her area who were not asked. That was the occasion which was most memorable to him. He also recalled times when she was filing job bags and remarked, "I'm the only one doing this -- again," or words to that effect.

45 Mr Thompson agreed that Ms Thompson often did much more typing than other employees. He said that he was aware of this because she was a particularly loud typist. He also recalled other employees picking up job bags and rejecting them because of the amount of typing involved. This meant that they were left for Ms Thompson to complete.

46 With regard to the collection and return of job bags, Mr Thompson agreed that - whilst it was policy to return each one after it was completed - most employees completed a batch of them before returning them.

47 Mr Thompson also recalled that Ms Thompson was transferred from the Mac system back to the Breeze system on a number of occasions. He believed that she was singled out for this treatment because nobody else was required to do it. When others were asked to work on the Breeze (e.g. because of volume of work) they made a pretense of working for a few minutes, and then drifted away. Ms Thompson was watched. Mr Thompson regarded being sent back to the Breeze system as de-skilling rather than multi-skilling, because of the age of the system, and the fact that it was being phased out.

48 Mr Thompson disagreed with the respondent’s assertion that a thorough knowledge of the Breeze system was necessary for someone to work on the millennium system. He named three or four employees who did not know, or had forgotten, the Breeze system, but who worked with the millennium system quite successfully. He confirmed Ms Thompson's assertion that she sought - unsuccessfully - training on the Millennium system on many occasions.

49 In regard to training, Mr Thompson agreed that it was done on an ad hoc basis. He said that Ms Cole and himself would have been the most competent people on the Breeze system, and thus the best to provide training. He regarded Mr Nutt as not quite competent.

50 Mr Thompson confirmed that, although he could not remember dates, he was one of the male employees who had worked overtime unaccompanied. He said that this occurred at the end of afternoon shifts perhaps once a month.

51 Mr Thompson stated that he had not seen pornographic material on computer screens at the respondent’s office. However, he did agree that he had, on occasions, seen employees standing around a computer screen, and reacting to what was on it in an enthusiastic manner. He had done so because he understood that a discrimination claim was being lodged, and he did not want to get involved. He was unaware of the applicant ever having refused to work on the Breeze system.

2,4 Carmel Cole's Evidence

52 Mr Thompson agreed that he had prepared a memo stating that the applicant did not want Breeze training.

53 Ms Cole has worked as a compositor for the respondent for around 20 years, and has been a union representative since 1999. She worked on the same shift as Ms Thompson during the period of Ms Thompson's employment.

54 Ms Cole explained that in mid 1999 Charles Dennis was made general manager of courier newspapers and Gareth Morgan operations director. She said that the management system changed drastically from this point on. Gareth Morgan, whose office was near the comp room, appeared to her to engage in an "intimidation and harassment" style of management. Comp room employees presented a "vote of no confidence" in him on 20 January 2000 to Charles Dennis, the general manager of courier newspapers. A letter of "no confidence" in Gareth Morgan dated 15 may 2000 was hand delivered to Michael Hannan, who was a director of the respondent. In November of that year, a one day work stoppage was held because of a lack of confidence in management, amongst other problems.

55 Ms Cole asserted that Christine Thompson was especially singled out for harassment and intimidation during her employment with Courier Newspapers.

56 Ms Cole asserted that apart from Ms Thompson no other employees in the Mac section were required to work on, and train on, the Breeze system. She said that she was well aware of this as a union rep, because training was a constant industrial issue in the Comp room. She also said that she had been mainly responsible for Ms Thompson’s training on the Breeze. She further stated that the occasions when Ms Thompson was transferred back to the Breeze system seemed to follow disagreements with or meetings with management. She confirmed Mr Thompson's view that the Breeze was the obsolete system, much inferior to the Mac.

57 Ms Cole also gave evidence about the greater amount of typing which Ms Thompson was expected to do as compared to other (male) employees. Ms Cole confirmed Ms Thompson's account of the meeting called when Ms Thompson refused to accept further typing work. She noted that she had gone back into Mr Morgan's office with Ms Thompson to provide the explanation regarding the extra typing Ms Thompson was required to do, and that Mr Morgan had apologised. She further stated, though, that when directed to allocate work Mr Cortassa had continued to allocate more typing to Ms Thompson than to other employees. On the same night, after Mr Morgan had gone home, Mr Cortassa had stood over Ms Thompson and made her do the extra typing. Ms Thompson was required to do extra typing on many occasions before and after this meeting.

58 Ms Cole also confirmed Ms Thompson's allegation that she was required to file job bags one at a time when other employees were not. She confirmed that when Ms Thompson complained about it Mr Cortassa had stood over her to ensure that she complied with the instruction. However, she agreed that it was well known that this instruction was not complied with by most other employees. She noted that both she and Mr Thompson are in the habit of doing about five or six jobs and then filing them. She said that often jobs only take about two or three minutes to do

59 Ms Cole confirmed that Ms Thompson was not allowed to do Millennium training until she became more proficient on the Breeze system. Ms Cole confirmed Mr Thompson's contentions regarding this- that it was not necessary. She also confirmed that many male employees trained on Millennium were not proficient on Breeze. Ms Cole conducted Ms Thompson's Breeze training, and noted that following that training Ms Thompson was much more proficient on the Breeze than many of the people operating the Millennium system. Ms Cole also asserted that both Greg Doyle and Greg Nutt received pay increases after training on the Millennium system.

60 Ms Cole confirmed Ms Thompson's assertions regarding overtime, and said that she had been at meetings where Mr Morgan had allowed male employees to do overtime alone, but not Ms Thompson. She asserted that this was clearly unequal treatment.

61 Ms Cole confirmed that many employees received cabcharge dockets, particularly after working late at night. She was not aware that Ms Thompson had been denied these.

62 Ms Cole confirmed that Ms Thompson had raised with her and other union delegates the problem with people accessing pornography through the Property Path system. She had raised this with Mr Morgan who agreed that there had been a problem, but that he had put a stop to it. She confirmed Mr Morgan's circulation of a memo including passwords for eighteen employees, and that this confirmed the ability of all of these people to access the internet. She said that the internet was, and still is, accessible through the Property Path computers and some of the Mac computers. She had been shown the internet icon on her computer several days before preparing her second statement. She named numerous employees whom she had seen accessing the internet.

63 Ms Cole asserted that Christine Thompson was victimised by management because she asserted her right to be treated equally. She referred to specific occasions, which she observed, when Mr Cortassa gathered other male employees around the corner from Ms Thompson’s workstation and made snide remarks about Ms Thompson. She said that this occurred more frequently towards the end of Ms Thompson’s employment.

3 Respondent’s Evidence

3,1 Steven Yeates Evidence

64 Steven Yeates confirmed that he had been employed by the respondent for 28 years and that, at the time of Ms Thompson's employment, he was the production manager for the whole pre-press operation. He was an experienced operator of the Breeze, Mac and Millennium systems.

65 Mr Yeates explained that an operator of the Millennium system had to be proficient on both the Breeze and the Mac, because as the Millennium was only a pagination system, errors found on the Millennium system would have to be corrected on the other systems. The material would then be sent again to the Millennium system.

66 Mr Yeates explained the job bag system. When new work was received it was placed in a basket rack system. Operators of the Breeze or Mac system would take the oldest job, complete that work, and place the bag into another basket rack system. He explained that it was important for the production scheduling system that jobs be returned to the rack when they were completed so that he and other managers could monitor production timing and scheduling.

67 Mr Yeates stated that he had been responsible for Ms Thompson’s employment, and that although she had applied for the job of a Mac operator all of those positions had been filled. He had offered her, and she had accepted, the position of a Breeze operator.

68 With regard to training, Mr Yeates asserted that the reason Mr Nutt would have been trained prior to Ms Thompson on the Millennium system was that he had come from employment where he had already done much pagination, and it would have been valuable to get him doing that work for the respondent as soon as possible. He stated that Ms Thompson had never asked him for training on the Millennium system. He further asserted that Ms Thompson was reluctant to be trained on, and work on, the Breeze system. With regard to Property Path, he agreed that most male employees had been trained prior to Ms Thompson, but he argued that this was purely a business decision.

69 Mr Yeates explained in cross-examination that Property Path was a website, used for accessing real estate advertisements. It therefore provided access to the internet. He further explained that all of the Mac computers were networked so that weekly folders of advertising could be accessed.

70 Mr Yeates stated that the Comp room was a unionised workplace, and that the union controlled the overtime roster. As such he said that he had no say as to which people did overtime. He further said that there was always a night shift working, so that any time Ms Thompson needed to do overtime she would not have been in the building alone.

71 With regard to parking Mr Yeates said that Hannan Print leased all of the parking on site, but that much street parking was available in the area.

72 Mr Yeates stated that a significant amount of typing is part of the job, and that all employees were adequate typists. He said that he was not aware of Ms Thompson doing more than her share of typing.

73 With regard to employees accessing pornography, Mr Yeates stated that he was aware of this complaint. He said that he had spoken to Lindsay Spooner who said that access to the internet was being monitored. He heard nothing further of it.

74 In response to the assertions of Mr Thompson and Ms Cole about the Breeze system being de-skilling, Mr Yeates said that this was not correct, and that this system was essential to the production of the newspapers. He did not explain why this was the case.

75 Mr Yeates confirmed Ms Coles assertion that employees who were trained on the Millennium system received a pay increase.

76 Mr Yeates asserted that Ms Thompson was not victimised by management, and that she was treated on an equal basis with all other employees.

77 Mr Yeates advised, with regard to jobs at Chatswood working on the Sydney Weekly, that Mr Morgan had told him that Ms Thompson had not applied because she would have been earning $6000 a year less than in her current role.

3,2 Gareth Morgan's Evidence

78 Mr Morgan gave evidence that he was employed as Operations Manager by the respondent from the beginning of 2000 until June 2001. He was responsible for the Comp room, and both shift managers reported to him. He had responsibility for around 250 employees.

79 Mr Morgan explained that the respondent required him to increase the efficiency and workflow of the pre press production area as part of his job. Also he was to increase customer satisfaction, and change the operations to be more customer focused and client orientated.

80 One of the aims Mr Morgan had when he joined the company was to ensure that all operators in the Comp room were multi-skilled. He said that he set this out as a policy, and that supervisors were required to implement it by ensuring that training of staff occurred. This training was not formal, but carried out by other skilled members of staff.

81 Mr Morgan asserted that Ms Thompson - who was employed prior to him joining the company - was employed as a Breeze operator. However, he asserted that she refused to be trained on, or work on, the Breeze system. He stated that attempts to have her trained in, and work in, this area were met with such intimidation by Ms Thompson that his staff refused to train her.

82 Mr Morgan gave evidence of claims of harassment by Ms Thompson immediately after the commencement of his employment. However, as noted above, the Tribunal has only considered issues arising after May 2000.

83 With regard to Ms Thompson’s evidence that she was required to do more typing than other employees, Mr Morgan stated that her work sheets would disagree with this, as many of them indicated that she was dealing with repeat advertising which would not require a great deal of typing.

84 Mr Morgan stated that all operators were expected to be proficient on both the Breeze and the Mac system, and that this was not a requirement imposed solely on Ms Thompson.

85 Mr Morgan stated that all overtime was organised by the union. He said that he had checked the wage records when Ms Thompson complained about the allocation of overtime, and that she was not being disadvantaged. He noted that Ms Thompson had advised the company that she could not work overtime on Saturdays for religious reasons, and that this was the time that most overtime was available.

86 Mr Morgan stated that he had been made aware by the IT section of the company that "adult" sites on the internet had been accessed during the night shift. He stated that following this he restricted access to the internet to supervisors. He was not aware of allegations of pornographic material being seen on computer screens. He said that had he been aware he would have taken action as there was a strict company policy against this.

87 Mr Morgan disagreed that there was any procedure preventing female staff from working overtime on their own. He stated that it was the company's preference to have two people working at any time for safety-security reasons. However, if one person was working on their own, arrangements were made to have security personnel make more regular visits. He stated that in order to make such arrangements, as well as for appropriate record-keeping and authorisation, all overtime had to be pre-approved. However, he accepted in cross-examination that - particularly during the week - overtime could be required at very short notice. He said that on one occasion Ms Thompson had worked unauthorised overtime.

88 Mr Morgan stated that Ms Thompson was not required to operate the Millennium system to make adjustments to pages by the printing area of the company. He said that there was an authorised list of people - himself included - who could be contacted if there was a problem, and who would come into the Comp room to rectify it.

89 With regard to wages paid Mr Morgan stated that these were determined by enterprise agreements, and that people did not receive higher wages because they were trained to operate particular equipment or systems.

90 Regarding cabcharge dockets, Mr Morgan stated that all employees were offered cabcharge dockets if they were working late at night. He said that if Ms Thompson was not offered one it would have been because her working late was not authorised and so supervisors did not know that she would need one.

91 Mr Morgan, in regard to sharing typing work around, agreed that Ms Thompson had complained about this. He stated that a typist was employed on the afternoon shift. He also said that it was the task of supervisors to see that the typing was shared equitably.

92 Mr Morgan denied any knowledge of Ms Thompson’s application for jobs with the Sydney Weekly at Chatswood.

3,3 Sobha Nair's evidence

93 Ms Sobha Nair gave evidence that she was employed as Human Resources Manager with the respondent.

94 Ms Nair provided pay and overtime records for the applicant, and six employees in comparable positions. These documents, which were exhibits at the hearing, indicated that Ms Thompson was on a comparable salary with these employees during her employment with the respondent. They also showed that she had worked a similar amount of overtime to the other employees.

3.4 Mario Cortassa’s evidence

95 Mr Cortassa gave evidence that he was employed as the afternoon shift supervisor during the period of Ms Thompson’s employment. He commenced employment with the company in 1988, and became afternoon shift supervisor soon after his commencement. He has remained in that position since that time.

96 Mr Cortassa asserted that Ms Thompson was appointed as a Breeze operator so that she could learn the Breeze system. She was already well qualified on the Mac system at the time of her appointment. It was then intended to train her for the Millennium system. It was intended to multi-skill all employees in this way.

97 Mr Cortassa asserted that Ms Thompson constantly intimidated staff who were trying to train her on the Breeze system and threatened them with discrimination actions. He stated that Ms Thompson never became proficient on the Breeze system and always needed supervision and assistance on that system.

98 Mr Cortassa asserted that Ms Thompson manipulated the job bag system so that she mostly got jobs that required retrieving and using repeat ads, and did not require much typing. He said that his disadvantaged other members of the afternoon shift. Further, he said that Ms Thompson usually took more than one job bag at a time, which was another manipulation of the system.

99 Mr Cortassa further alleged that Ms Thompson had, on occasions, rung advertisers and told them that she was the afternoon shift supervisor.

100 Mr Cortassa stated that the reason others were trained before Ms Thompson was that they were the staff for the new night shift. It was necessary to train these staff quickly on all systems so that the new shift could commence. He also said that some staff trained ahead of Ms Thompson gained priority because of their previous experience on pagination systems.

101 Mr Cortassa also gave evidence on employees working overtime on their own. He asserted that it was not allowed under the award. He asserted that the overtime which Ms Thompson worked was unauthorised, and that this would explain why she had not been given a cabcharge docket.

102 Mr Cortassa confirmed the evidence of Mr Morgan that overtime was allocated by the union reps, and thus he had little input into the amounts of overtime which people worked.

103 With regard to viewing of pornographic images Mr Cortassa denied any knowledge of this. He said that the only way such images could be obtained was through the Property Path system, as there was no other access to the internet.

104 Mr Cortassa agreed in cross-examination that, whilst the Property Path machines were operated by one or two employees, everyone had access to these machines. He agreed that, during the time of Ms Thompson's employment, a document had been circulated which set out all employees names and passwords. He also agreed that – whilst the property path machines were stand-alone pc’s – email could be received on one of the Mac machines, and then images could be sent around to the other Mac machines via the network. Mr Cortassa stated in answer to further questions that any employee, using these means, could access the internet and download and circulate pornographic images. He also agreed that he was aware of this being done by night-shift employees. He concluded that he had never seen any pornographic images in the production area, but noted that he had seen cartoons relating to Osama Bin Laden and George Bush.

105 With regard to jobs at Chatswood working on the Sydney Weekly, Mr Cortassa said that Mr Morgan had told him that Ms Thompson had not applied because she would have been earning $6000 a year less than in her current role.

4 Findings of Fact

106 The introductory evidence from both parties, set out in section 2,1 of this decision, has been drawn from witness statements and documents in evidence. It is not in dispute between the parties, and is adopted as the background to this decision.

107 Much of the evidence before the Tribunal relates to allegations made by Ms Thompson which pre-dates 23 May 2000, and is thus out of time according to the ruling of the President of the Anti-Discrimination Board. Whilst the Tribunal has made reference to some of this evidence, it has only done so for reasons of clarity and continuity. None of that evidence is adopted as findings by the Tribunal.

108 Further, Ms Thompson's third complaint to the ADB referred to her termination of employment as victimisation. However, she did not plead this issue in her points of claim, presumably because it had been dealt with in her industrial claim prior to the hearing of this complaint. The Tribunal has therefore not set out any of the evidence relating to that issue, and has made no findings about it.

109 The Tribunal’s consideration is therefore limited to two complaints - one of sex discrimination and sexual harassment in employment, and the other of victimisation as a result of lodging the first complaint. Apart from the introductory material referred to above, the Tribunal has limited its findings to these areas, and has made its findings under the six headings set out in Ms Thompson’s evidence.

110 The Tribunal’s findings are made in the context of evidence from witnesses for both parties as to the nature of the workplace in which Ms Thompson was employed. They are also made recognising the approach Ms Thompson took to asserting her rights in the workplace.

111 Mr Morgan gave clear evidence that he had been employed with the aim of making the workplace more efficient, both in terms of reducing costs and improving production flow. Whilst this is an understandable aim on the part of the respondent, such approaches can cause tensions between management and staff. The existence of such tensions is confirmed in Ms Coles evidence, supported by some of the documentary evidence made available by the parties relating to activities in the workplace. This workplace was clearly strongly unionised, a fact which can also give rise to workplace tensions.

112 It is clear to the Tribunal, from the evidence and demeanour of Ms Thompson, from the evidence of Ms Cole and Mr Thompson, and from comments made by the three management witnesses for the respondent, that Ms Thompson was a person who was aware of her rights, and who was prepared to strongly assert them. In fact, witnesses for the respondent went further, asserting that Ms Thompson was a "troublemaker". Her gender, as well as her attitude, may have been a factor in such assessments.

113 The Tribunal is in no way critical of Ms Thompson for such an approach. However, her attitude in this regard, in a strongly unionised workplace where change was occurring, could exacerbate issues which occurred between herself and both other staff and management.

4,1 Training

114 The Tribunal accepts Ms Thompson’s assertion that she was not trained on the Millennium pagination system. This is not disputed by the respondent. However, at issue is the reason that she was not trained. Ms Thompson asserts that this was because of her gender, and due to victimisation. This is supported by the observations of Mr Thompson and Ms Cole. The respondent’s witnesses assert that it did not occur because Ms Thompson would not learn, and was not competent on, the Breeze system. Further, they argue that due to reasons of business others needed to be trained first.

115 The Tribunal does not accept the evidence of Messrs Yeates and Cortassa that Ms Thompson was not competent on the Breeze system. It is satisfied that - whilst her clear preference was to work on the Mac system - she was able to operate the Breeze system. This was the view that Ms Thompson expressed, and it was supported by Mr Thompson and Ms Cole. The Tribunal is not satisfied that the respondent has successfully countered that evidence. It takes the view that Mr Yeates and Mr Cortassa's evidence of Ms Thompson's level of competence is clouded by their view of her approach in the workplace. Whilst the Tribunal recognises that there was continuous conflict about the issue of Breeze training, and that Ms Thompson was primarily a Mac operator, it has formed the view that Ms Thompson’s level of competence would have allowed her to be trained on the Millennium system.

116 The Tribunal does, however, accept the view of the respondent’s witnesses, that there were a number of other employees for whom Millennium training was more important than for Ms Thompson. This was both because some of them were more skilled in pagination, and could thus be better utilised in that area, and also because of the shifts on which various people were employed.

117 However, the Tribunal is satisfied that one of the factors leading to Ms Thompson not being trained on the Millennium system related to her gender, and the way in which she was viewed by management in the workplace.

118 Secondly, the Tribunal accepts Ms Thompson's evidence - also not disputed - that she was not trained on the Property Path system. Again, the reasons for this are in dispute.

119 Ms Thompson asserts that this, too, relates to her gender and victimisation. Ms Cole and Mr Thompson do not express a specific view on this question, although they do support the allegation of mistreatment of Ms Thompson. Mr Cortassa states that he selected the employees to be trained on this system based on the skills of the employees and the needs of the company. In the face of lack of specific evidence to the contrary the Tribunal is inclined to accept Mr Cortassa’s view on this point.

120 Finally, the Tribunal is not persuaded that the fact that Ms Thompson was not trained on the Millennium system affected the amount she was paid. Ms Thompson presented very little specific evidence in this regard, and whilst Ms Cole and Mr Yeates evidence supported the assertion, their evidence was in quite general terms. The evidence on this point was refuted by the clear evidence of Ms Nair. She prepared a table of the comparative wages of other employees which indicated that Ms Thompson’s wages were, subject to variations for overtime etc, similar. Further, Mr Morgan stated that wages of employees in the Comp Room were not differentiated depending on which systems they used or were trained on.

121 Therefore, in the area of training, the Tribunal is satisfied that Ms Thompson’s gender, and victimisation, were one factor in her not being trained on the Millennium system.

122 Ms Thompson’s assertion that she was not allowed to work overtime alone whereas men were, is supported by Ms Cole. Mr Thompson also states that he was one of the men allowed to work overtime alone, and that this occurred approximately once a month.

123 The respondents witnesses gave different evidence on this issue. They agreed that overtime was allocated to individuals by the union rep, so they didn't have a lot of say in the issue. They also asserted, which Ms Thompson did not dispute, that Ms Thompson preferred not to do overtime on Saturdays due to religious reasons. This would clearly have an impact on the amount of overtime she got. They also stated that overtime had to be authorised, and that on at least one occasion Ms Thompson had worked unauthorised overtime. However, Mr Morgan did agree that sometimes overtime could be required at quite short notice.

124 Mr Morgan also said that he had checked wage records when Ms Thompson had complained about not getting an equal amount of overtime, and that this was not borne out in these records. Ms Nair’s evidence that, whilst working overtime alone was not preferred by management, it did occur. However, what is not clear is whether Ms Thompson's overtime was restricted because as a female she could not do it alone, or whether it was due to her working without authority. The evidence that her wages were comparable with other employees suggests that - taken in the broad - any restriction of overtime for Ms Thompson was negligible. This, along with the allocation of overtime by the union rep, and the fact that she preferred not to work on Saturdays, persuaded the Tribunal to find that there was no restriction of Ms Thompson's overtime based on her gender or victimisation.

4,3 Allocation Of Cabcharge

125 Ms Thompson’s evidence was that she was not given Cabcharge dockets after working late, although they were given to male employees. Ms Cole agreed that such dockets were available, and this was confirmed by Mr Morgan and Mr Cortassa. Both of these witnesses for the respondent stated that they would have been available to Ms Thompson, and the overtime she had done was not authorised.

126 Whilst the Tribunal accepts Ms Thompson’s evidence that on several occasions she did not receive Cabcharge dockets, it is difficult for the Tribunal to determine the reason for this. However, on the balance of probabilities, the Tribunal is not satisfied that there is enough specific evidence before it to form the view that the unavailability of such dockets related to Ms Thompson’s gender or to victimisation. It is therefore not prepared to make that finding.

4,4 Allocation Of Work

127 Ms Thompson makes three allegations under this heading-

* That she was required to do more typing than male employees, and thus got less opportunity to do graphics work;
* That she was required to file job bags one at a time, and that this was monitored. Whilst this was correct procedure, male employees did not do it and were not monitored;
* That she was put on to the Breeze system more than male employees, and that again she was monitored whereas they were not.

All three of these allegations were confirmed by the evidence of John Thompson.

128 Ms Cole also confirmed all of these allegations. She was present at the meeting with Mr Morgan regarding the extra typing. However, she confirmed that, despite Mr Morgan’s instructions, Mr Cortassa continued to require Ms Thompson to do extra typing and file job bags one at a time. She further confirmed that Mr Cortassa monitored Ms Thompson on these tasks, but did not monitor other employees.

129 Witnesses for the respondent gave a different view. Mr Yeates was not aware of Ms Thompson doing more typing. However, Mr Cortassa is the central witness here. He was Ms Thompson’s direct supervisor, and the person responsible – according to the applicant and both her witnesses – for the unfair allocation of work and the excessive monitoring.

130 Mr Cortassa's evidence was that Ms Thompson was not competent on the Breeze system, and would not be trained on it. He denied that she was put on it more than others. He also denied that she was given more typing than others, and supported Mr Morgan's assertion that she did a lot of repeat ads which would not require much typing. He also said that if she had been doing more typing then she was getting the easier part of the job, as the graphics work was more challenging. He also denied the excessive monitoring, and accused Ms Thompson of manipulating the job bag system to her advantage, by filing more than one at a time, and by selecting which ones she wanted to do.

131 Based on the weight of evidence, and the clarity of evidence from the applicant and both her witnesses on these points, the Tribunal is satisfied that Ms Thompson’s allegations are correct. The Tribunal accepts the assertive approach which the applicant took in the workplace was not liked, and that she was punished as a result. The Tribunal is satisfied that the main protagonist of this punishment was Mr Cortassa, but that Messrs Morgan and Yeates passively co-operated in it. From all of the evidence the Tribunal is satisfied that Mr Cortassa was challenged by Ms Thompson’s gender and her assertiveness, and that he dealt with this challenge by unequal metering out of tasks, and more rigourous monitoring of rules. The Tribunal finds that all of Ms Thompson’s allegations in this section are made out.

4,5 Exposure To Pornographic Material

132 Ms Thompson’s allegations regarding this issue are clear. Whilst neither Mr Thompson nor Ms Cole gave evidence of seeing such material, Ms Thompson’s allegations are supported by them to an extent. Mr Thompson agreed that he had seen male employees gathering around a computer screen and showing great interest in the images on it. Ms Cole confirmed that Ms Thompson had made these allegations at the time, that Ms Cole had raised them with Mr Morgan who agreed that he was aware of the problem and said that he had stopped it, and that access to the Internet was possible by a number of employees, and through a number of computer systems. Ms Cole also confirmed the existence of the memo which included names and passwords.

133 The respondent’s evidence in this area was again concerning. Mr Morgan was clear that the showing of such material was in breach of company policy. He agreed that the IT section had made him aware of night-shift employees accessing adult sites, and that he had then restricted access to the internet to supervisors. However, it is unclear how he could have done this when employees needed to regularly access the internet when working on the Property Path system. Mr Morgan said that he was not aware of pornographic images being shown on computer screens in the workplace, and that he would have put a stop to it if he had been. However, this does not accord with Ms Coles evidence on the issue.

134 Mr Yeates agreed that he was aware that employees were accessing pornography on the internet. He had spoken to Mr Spooner about it, and been told that internet access was being monitored. He then heard nothing more about it. Mr Yeates confirmed that it would be possible to download pornography from the internet, and circulate it to other computers in the workplace.

135 Mr Cortassa's evidence in this area was contradictory. In fact, his evidence on these points has impacted on his credit, and reduced the weight that the Tribunal is prepared to give to his evidence overall. In his statement of evidence Mr Cortassa denied any knowledge of pornographic images in the workplace, and asserted that this could not occur because of limited internet access. However, in cross-examination he told a different story. He agreed that material could be downloaded through the Property Path system, and that emails could be received on one of the Mac machines and then circulated around the Mac network. In answer to further questions, he conceded that any employee could access the internet, and that pornography had been downloaded by night-shift employees. He stated that he had never seen pornography on the screen during his shift, but that he had seen cartoons of Osama Bin Laden and George Bush.

136 On balance once again, the Tribunal is persuaded by the applicant’s evidence. It is clear, and supported indirectly by the evidence of her two witnesses. On the other hand, whilst Mr Morgan made it clear what company policy was, he accepted that such allegations had been made. Mr Yeates, and Mr Cortassa when pressed, agreed that pornography could be accessed from the internet, and that this had occurred during the night-shift. The Tribunal finds that such pornography - whether downloaded by night-shift or other employees - was available and on screens during Ms Thompson’s shift.

4,6 Job Opportunities At Chatswood

137 Ms Thompson’s allegations on this issue are in broad terms. She asserts that she applied for a position doing the Sydney Weekly work, but was not interviewed. She further asserts that the person appointed as supervisor had less experience than her, but was male.

138 From the respondent’s perspective, Mr Morgan denied any knowledge of the issue; Mr Yeates and Mr Cortassa both relayed conversations which they said they had had with Mr Morgan to the effect that Ms Thompson had applied for the jobs as they would have meant a drop in salary.

139 The Tribunal finds it difficult to make positive findings when the evidence is in such broad terms. Neither Counsel took witnesses to this issue for further clarification. No application was tendered, no details were given of both who the application was made to, and who was the successful applicant. In such circumstances the Tribunal was not prepared to make findings on the issue.

5 The Law

140 The Tribunal has stated in its findings of fact that Ms Thompson’s attitude and gender may have been a factor in some of the assessments which staff of the respondent made, and in some of the actions which they took. This needs to be tested in determining whether the actions of the respondent through its staff, as set out in the above findings, constituted less favourable treatment of Ms Thompson on the ground of her sex, or victimisation. The areas in which findings were made against the respondent are -

* Lack of training on the Millennium system;
* Higher allocation of work on the Breeze system, and greater pressure to stay there through monitoring;
* Requirement to file job bags one at a time, and monitoring of this requirement;
* Requirement to carry out more typing than other employees, and monitoring of this requirement;
* Exposure to pornographic images.

141 The major responsibility for all of these issues is with Ms Thompson’s direct Supervisor, Mr Cortassa. The Tribunal is satisfied that his different treatment in these regards resulted from the fact that he was challenged by a woman asserting her rights, and by the fact that she was prepared to complain about unfair treatment. In order to make a finding against the respondent, upon whose behalf Mr Cortassa was acting in his role as the applicant’s supervisor, the Tribunal would have to be satisfied that a notional man - acting the same way as the applicant did - would not have been treated in the same way. The Tribunal is so satisfied. It has formed this view based on the evidence of the applicant, of Mr Thompson and Ms Cole. All three witnesses confirmed the treatment which Ms Thompson received - particularly from Mr Cortassa. Ms Cole gave evidence that Mr Cortassa had been seen by her with a group of male employees making snide remarks about Ms Thompson. In all of the circumstances of the workplace described throughout the evidence, the Tribunal is satisfied that a male employee, asserting his rights in the way which Ms Thompson did, would not have been "punished" in the way that she was.

142 Further, the Tribunal is of the view that Mr Cortassa's actions also fall within the definition of victimisation.

143 An act of victimisation occurs where a person subjects or threatens to subject another person to any detriment on the ground that the person:

has made, or proposes to make, a complaint under the Act;
has brought, or proposes to bring, proceedings under the Act against any person;
has furnished, or proposes to furnish, any information, or
has produced, or proposes to produce, any documents to any person exercising or performing any power or function under the Act;
has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under the Act; or
has made an allegation that a person has done an act that is unlawful under the Act.

144 Prior to, and during, the period under review, Ms Thompson both threatened to take such actions, and did in fact take such actions. Mr Cortassa's treatment of Ms Thompson, as set out in the findings of fact, constituted detriment to her, and resulted from these threats.

145 The Act provides that a respondent may be vicariously liable for the actions of members of its staff, provided that such actions were authorised by it. Whilst Mr Cortassa's actions were not directly authorised by the respondent, he was operating in his role as supervisor, and - despite complaints by the applicant to Mr Morgan and others - the actions continued. The Tribunal is satisfied that the respondent, in these circumstances, is vicariously liable for the acts of Mr Cortassa.

146 The Tribunal is therefore satisfied that the respondent discriminated against Ms Thompson on the ground of her sex, and victimised her, in breach of the Anti-Discrimination Act 1977.

6 Damages

147 The Tribunal is of the view that the appropriate award in this case is one of damages. An apology at this point would be of minimal value to the applicant, and as the applicant is no longer an employee of the respondent there is no point in making orders preventing further similar conduct.

148 The period under review for the Tribunal began on 23 May 2000. Ms Thompson's employment with the respondent ended in September 2001. Therefore, the discrimination being assessed by the Tribunal spans a period of some 15 to 16 months. This is approximately 65 weeks of employment.

149 The list of discriminatory treatment is set out in the previous section of this decision. The Tribunal has determined that it is easiest to assess the impact of this treatment on Ms Thompson in monetary terms on a weekly basis, and then multiply it by 65 to settle the amount of the damages award. The Treatment falls into three broad categories-

* Lack of training;
* Unfair allocation of work;
* viewing of pornography.

150 The lack of training on the Millennium system is probably the least serious of the three. It is clear that - despite the lack of training - Ms Thompson developed some skills in the area, as she used the system on various occasions. Whilst such training would have qualified her better for her future career, the Tribunal does not view it as a major disadvantage. It has assessed the impact at $10 a week, totalling $650.

151 The unfair allocation of work is the most serious of the breaches. This was a continuous issue for Ms Thompson in the three areas detailed. It appears to have impacted on her during most, if not all, of the shifts she worked in the period under review. When giving evidence it was clear that she is a strong person, and the ongoing impact did not show major detrimental effects. However, the respondent should not be rewarded on this account. The Tribunal has allocated an amount of $25 a week for each of three areas of unfair allocation of work. It has therefore ordered $75 a week over 65 weeks which totals $4875.

152 Finally, there is the continual viewing of pornography. This is clearly inappropriate in such a work place setting. Again, it has continued to impact on Ms Thompson for the whole of the period in review. Once again Ms Thompson, being a strong person, has not brought evidence of its serious impact. In all of the circumstances the Tribunal is satisfied that an amount of $20 a week is an appropriate award. This would total $1300 for 65 weeks.

153 The overall damages award is therefore $6825.

7 Conclusion

154 The story of this case is a common but unfortunate one. Ms Thompson, an assertive woman who is prepared to stand up for her rights, has been punished as a result. Such treatment reflects poorly on both the supervisors and managers of the respondent. It is hoped that this decision will provide a salutary lesson, and discourage such treatment of individuals in the future.

155 The Tribunal finds that the respondent has discriminated against the applicant in breach of the Anti-Discrimination Act 1977, by victimising her and treating her less favourably on the ground of her sex. It orders the respondent to pay to the applicant $6825 within 21 days of the date of this decision.