Velagapudi v Symbion Pharmacy Services Pty Ltd formerly Faulding HealthCare Pty Ltd [2006] NSWADT 329 (16 November 2006)

Last Updated: 16 November 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Velagapudi v Symbion Pharmacy Services Pty Ltd formerly Faulding HealthCare Pty Ltd [2006] NSWADT 329


PARTIES: APPLICANT
Rama Velagapudi
RESPONDENT
Symbion Pharmacy Services Pty Ltd formerly Faulding HealthCare Pty Ltd



FILE NUMBERS: 041135

HEARING DATES: 27/10/05-28/10/05, 31/10/05, 27/03/06-29/03/06

SUBMISSIONS CLOSED: 16/05/2006



DECISION DATE: 16/11/2006

BEFORE: Grotte E - Judicial MemberAntonios Z - Non Judicial MemberSchneeweiss J - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Briginshaw v Bringinshaw [1938] HCA 34; (1938) 60 CLR 336
Carter v Linuki Pty Ltd t/as Aussie Hire & Anor (2004) NSWADT 287
Commissioner of Corrective Services –v- Aldridge (EOD) [2000] NSWADTAP 5
Dutt –v- Central Coast Area Health Service [2002] NSWADT 133
Edwards v Bourke Bowling Club Limited [2000] NSWADT 31
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Shellharbour Golf Club –v- Wheeler (1999) NSWSC 224
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

APPLICATION: Race Discrimination - In work
Victimisation

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In Person assisted by S Benjamin

RESPONDENT REPRESENTATIVE: RESPONDENT
K Eastman, Barrister

ORDERS: The Respondent is to pay the Applicant general damages in the sum of $15000 in relation to the claim of race discrimination within 21 days of the date of these Orders.


Reasons for Decision:

REASONS FOR DECISION

Background and Complaint

1 Rama Velagapudi ("the Applicant") is employed full-time as an assembler/storeperson by Symbion Pharmacy Services Pty Ltd, formerly Faulding HealthCare Pty Ltd ("the Respondent").

2 Ms Velagapudi was born in India in 1951. She arrived in Australia in 1999 and became a citizen of Australia in about September 2001. She was first employed by the Respondent on a casual basis and became a full-time permanent employee in about May 2002.

3 The Applicant’s work for the Respondent requires her to pick and assemble pharmacy supplies as well as to replenish stock in cooperation with other assemblers/storepersons.

4 The Respondent is engaged in the business of distribute prescription products, over the counter products, third party products and narcotics to pharmacies throughout New South Wales.

5 The Applicant’s husband was also employed by the Respondent as an assembler/storeperson from on or about 30 April 2001 until 5 August 2005.

6 Ms Velagapudi claims that the Respondent and its employees discriminated against her on the ground of her race, being Indian. She claims that the Respondent and its employees victimised her as a result of making a complaint of discrimination.

7 The Respondent accepts responsibility for the conduct of its employees, therefore no issue arises under section 53 of the Anti-Discrimination Act 1977 ("the ADA").

8 Ms Velagapudi alleges that on or about 15 August 2003 she was informed that a co-worker called her a "lazy black Indian bitch". She alleges that she felt humiliated, because she became aware that all the warehouse employees knew about the remark. Ms Velagapudi alleges that the person who was responsible for the remark apologised to her, but she did not consider the apology to be genuine and refused to accept it.

9 Ms Velagapudi alleges she complained to John Davis, the State Operations Manager. She prepared a written complaint, which was given to Mick Blundell, the Distribution Centre Warehouse Manager to investigate.

10 Ms Velagapudi alleges she followed up her complaint with Mr Blundell on 20 August 2003. In the meantime, her colleagues had been making comments to her about the situation. Mr Blundell gave her a copy of the Respondent’s grievance handling procedure and told her that Leanne Spooner, who had made the remark, would be given a warning. He also told her that should Ms Spooner repeat the remark she would be sacked from her employment.

11 Ms Velagapudi alleges she was not satisfied with this outcome and that she wanted management to terminate Ms Spooner’s employment.

12 Ms Velagapudi alleges that on or about 22 August 2003, management appointed Greg Milthorpe as her supervisor. Ms Velagapudi alleges Mr Milthorpe was Leanne Spooner’s boyfriend at the time and they subsequently married in 2004. Ms Velagapudi alleges she was given no assurances by management about this transfer and it gave her no confidence that her complaint was being addressed properly by management.

13 Ms Velagapudi alleges Mr Milthorpe denied her and her husband overtime, despite offering it to other employees. She alleges he did this to victimise her for making a complaint about Ms Spooner and because he held the same racist views as his girlfriend.

14 Ms Velagapudi alleges that on 26 August 2003 Mr Blundell told her the matter was concluded, because Leanne Spooner had apologised and because management had given her a warning and had been assured by Leanne Spooner she would not repeat the words. Ms Velagapudi was not satisfied with this outcome. She had been waiting for two weeks, during which she felt stressed. She consulted her general practitioner, Dr Siva Guru, who advised her to take a week off work. She also wrote a further letter of complaint to Mr Romano Negri, the New South Wales Operations Manager for the Respondent, alleging that her complaint had not been dealt with seriously and requested that he take appropriate action.

15 Ms Velagapudi alleges that on or about 16 September 2003 she and her husband attended a meeting with John Davis, Alvan Freeman (the Regional Personnel/Human Resources Manager) and Mick Blundell. At this meeting she alleges she was told the company decided to give Leanne Spooner a written warning and to transfer her upstairs. She was told the company would also arrange training sessions for all warehouse workers regarding discrimination and harassment.

16 Ms Velagapudi alleges that, shortly after this meeting, her work colleagues began treating her in such a way that she felt isolated and victimised. Ms Velagapudi alleges that between September 2003 and September 2004 she was subjected to victimisation as a result of having made complaint of discrimination to management.

17 In summary, the alleged incidents of victimisation are:

(i) On or about 23 September one of the Applicant’s co-workers, Michele Monier, stopped talking to her and pushed her down the Q line to the end where the work was heavier;
(ii) On or about 24 September 2003 the Applicant was directed by Greg Milthorpe to move from Q line to T line. Ms Spooner was working on Q line where Ms Velagapudi had been working.
(iii) Ms Velagapudi was in T line for about three days and Greg Milthorpe was using casual staff to direct Ms Velagapudi, which she found humiliating. She found working by herself in such a busy area very stressful. She asked a co-worker for help. She claims that Mr Milthorpe told Doug Pursey, the union delegate, that he was stressed and that Mr Pursey should talk to management abut moving her to a different area. Mr Blundell moved her to a different job but she wanted to work on the line. It was suggested to the Applicant that she try the new job for a couple of days.
(iv) On 29 September 2003 Ms Velagapudi was forcibly removed from the assembly line and sent to credit putaways and replenishments without consultation. She claims she felt humiliated by being moved around from section to section and she did not know what to expect from one day to the next.
(v) Mr Milthorpe insulted the Applicant by telling her she was disturbing her co-workers when she was not.
(vi) On 29 September 2003 the Applicant complained about workplace harassment by Mr Milthorpe and she requested a transfer away from him, but she was told by Mr Davis that a transfer was not a solution.
(vii) In about October 2003 Leanne Spooner returned to work as a line starter working in the same area as Ms Velagapudi on at least two occasions when other line starters were on leave.
(viii) On or about 14 November 2003 the Applicant was told by management that she was harassing her supervisor, Mr Milthorpe.
(ix) In about January 2004 Leanne Spooner was working in the same area as the Applicant. The Applicant complained about it.
(x) On 22 January 2004 the Applicant was told by management that she was inventing and manufacturing issues against Mr Milthorpe because he was Leanne Spooner’s boyfriend and that if she did not stop complaining, disciplinary action would be taken against her.
(xi) On 1 June 2004 Ms Velagapudi claims that her team leader, Angie Moscato, did not attempt to distribute the work equally so the Applicant was left with 9 aisles from which to pick products. Her colleagues had stopped talking to her and Mr Davis told her that people were scared of her because she might say she had been subjected to discrimination.
(xii) On or about 17 June 2004 Mr Milthorpe questioned her about a complaint made by a casual employee that Ms Velagapudi had failed to sign the totes containing the picked items as required. Ms Velagapudi explained they were not her totes. She complained that Mr Milthorpe was victimising her.
(xiii) On 18 June 2004 Angie Moscato picked on the Applicant and told her "I am a naughty woman. I will make you cry."
(xiv) Mr Davis suggested that Ms Velagapudi make a friendship with Leanne Spooner because Ms Spooner has many friends in the workplace.
(xv) Angie Moscato complained that Ms Velagapudi was not following instructions and management questioned her about not following line starter direction. The Applicant complained that Ms Moscato’s complaint was false.
(xvi) On 2 September 2004 Ms Moscato directed the Applicant to work at the end of Q line where there was no work and she complained Ms Velagapudi was not following her directions. A new supervisor, Mr Heke, told the Applicant she did not need to take any more directions from Ms Moscato. She was moved to S line.

Scope of the Complaint

18 By letter dated 27 January 2004 Ms Velagapudi lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") in which she set out her complaint of racial discrimination and victimisation concerning the remark made by Ms Spooner, her complaint to management, Mr Milthorpe’s transfer as her supervisor and subsequent events for the period 15 August 2003 to 27 January 2004.

19 By letter dated 5 April 2004 to the Board Ms Velagapudi lodged a further complaint of victimisation regarding an alleged loss of overtime.

20 These complaints were forwarded to the Respondent seeking a response. The Respondent forwarded a response to the Board by letter dated 2 June 2004.

21 By letter dated 23 June 2004 to the Board Ms Velagapudi lodged comments on the Respondent’s response and included further instances of alleged victimisation for the period 1 June 2004 to 23 June 2004.

22 The Board forwarded these further complaints to the Respondent for comment and the Respondent responded by letter dated 26 August 2004.

23 By letter dated 13 September 2004 Ms Velagapudi commented on the Respondent’s response and also complained of further instances of alleged victimisation for the period 15 August 2004 to 13 September 2004.

24 These letters constitute the complaints referred by the President to the Tribunal under section 94(1) over which the Tribunal has jurisdiction. The scope of the Tribunal’s inquiry is limited to the matters referred under section 94(1) covering the period of the complaints being 15 August 2003 to 13 September 2004. Any new complaints outside this period raised in the Applicant’s submissions are not within the purview of this Tribunal.

Applicable Law

25 The complaints are of direct discrimination. Indirect discrimination has not been alleged. The test for direct discrimination on the ground of race is set out in section 7(1)(a) of the Anti-Discrimination Act 1977 (ADA). That section provides that "a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the person’s race ... the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that race...".

Race" is defined in section 4(1) of the ADA as including "colour, nationality, descent and ethnic, ethno-religious or national origin".

26 Section 8(2) of the ADA relevantly provides:

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

(a) in the terms and conditions of employment which the employer affords the employee,
(b) ...
(c) by dismissing the employee or subjecting the employee to any other detriment.

27 The word "detriment" should be given its ordinary meaning of "loss, damage or injury" (the Macquarie Dictionary, 3rd Edition, the Macquarie Library). The detriment suffered must be "real and not trivial" and "whether something constitutes a detriment must be determined objectively and not subjectively" (Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]).

28 The Appeal Panel in Commissioner of Corrective Services –v- Aldridge (EOD) [2000] NSWADTAP 5 held that there are two key components to establishing direct discrimination, the first being differential treatment and the second being causation. Differential treatment should be considered first and if there is no differential treatment, then it is unnecessary to consider causation. Accordingly the Tribunal must consider first whether there has been any less favourable treatment and secondly, whether the less favourable treatment was on the ground of race.

29 As stated by the Tribunal in Dutt –v- Central Coast Area Health Service [2002] NSWADT 133 the "consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess ‘less favourable treatment’...When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds of treatment of the applicant were...it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person of not the applicant’s race would have been treated differently". This Tribunal agrees that where the comparator is hypothetical, as stated in Dutt’s case, the "two questions as to ‘less favourable treatment’ and ‘on the ground of race’ might be answered as part of the same reasoning exercise".

30 If less favourable treatment is established, the Applicant must also establish a causal link between the treatment and her race. If there is no direct evidence then the Applicant must rely on inference drawn from the primary facts or a course of conduct (Edwards v Bourke Bowling Club Limited [2000] NSWADT 31). In Edwards’ case and Dutt’s case and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 the following considerations were identified as necessary to the drawing of inferences:

A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts.
An inference must be reasonably drawn on the basis of the primary facts.
An inference can be drawn from a combination of facts, none of which viewed alone would support that inference.
A fact relied on as the basis of an inference need not be proved to the requisite standard of proof.
It is not enough that the inference is a mere possibility. It must be one of "probable connection".
The inference must be a logical one and not supposition.
An inference cannot be made where more probable and innocent explanations are available on the evidence.

31 Section 53 of the ADA relevantly provides:

53(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

32 It is commonly accepted in this Tribunal that findings should be made according to the evidentiary requirements of Briginshaw v Bringinshaw [1938] HCA 34; (1938) 60 CLR 336. In determining whether the Applicant has established her case the Tribunal has applied the civil standard of proof set out in Briginshaw. However, in doing so, the Tribunal has taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent.

33 Section 4A of the ADA provides that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination then, for the purposes of the ADA, the act is taken to be done for that reason.

What Ms Velagapudi Must Prove and Findings and Reasons re Race Discrimination Complaint

34 To succeed in her complaint of race discrimination, Ms Velagapudi must establish, on a balance of probabilities, that:

(i) The Respondent subjected her to a detriment
(ii) she was treated less favourably than a person not of her race was or would be treated in the same or similar circumstances, and
(iii) one of the reasons for that less favourable treatment was her race.

35 The Applicant claims that Leanne Spooner uttered aloud the words "lazy black Indian bitch". She claims she was told about this by both Lynette Warzecha and Doug Pursey, both of whom are union delegates. Ms Warzecha, Mr Pursey and Ms Spooner deny that the word "Indian" was used but agree that Leanne Spooner said "lazy black bitch". Mr Myneni gave evidence that he understood the word "Indian " was used as well as "woman" but conceded that his knowledge was based on what his wife told him. There are some inconsistencies in the Applicant’s evidence as to what she was told, by whom and when. It is the Tribunal’s view however that these inconsistencies are not significant and in no way detract from the Applicant’s credibility as a witness. The Tribunal found the Applicant to be a credible witness.

36 Despite the evidence of Leanne Spooner and Ms Warzecha, the Applicant maintained that the word "Indian" was used. She relied on an inference drawn from the fact that Mr Blundell interviewed other Indian employees when conducting an investigation into the remark. The Tribunal is not satisfied that the word "Indian" was used by Ms Spooner in her outburst. The Tribunal prefers the evidence of Ms Spooner and Ms Warzecha in this regard because Ms Spooner made the remark and Ms Warzecha was one of the persons she informed directly that she had made the remark, whereas Ms Velagapudi relied on hearsay.

37 The Tribunal is of the view that whether or not the word "Indian" was used is irrelevant. There is no dispute that the remark directly concerned Ms Velagapudi and was clearly alluding to her race, as it referred to the colour of her skin, a characteristic of being Indian. There is no dispute that the remark was said in a derogatory manner. The Tribunal accepts that once it was made known to Ms Velagpudi, it caused injury to her in that she felt humiliated and distressed.

38 It was submitted on behalf of the Respondent that the "single incident involving a remark which was made in private and not said to any other person at the time, does not of itself amount to or prove unlawful discrimination".

39 The Tribunal notes that the evidence of Leanne Spooner was that, having become frustrated with the Applicant because of her perceived inefficiency, she walked into "an empty aisle and mouthed off in extreme frustration calling Mrs Velagapudi a "lazy black bitch". No one was in the aisle nearby when I made this comment". She then went to Angie Moscato, a team leader, and Saini Fa’alago, the Applicant’s supervisor at the time, and told them what she had just said. This evidence, set out in her statement of 25 July 2005, is inconsistent with a report prepared by Mick Blundell setting out his interview of Leanne Spooner dated 20 August 2003 in which it is recorded "Leanne stated to me that this [comment] was overheard by a number of people".

40 The Tribunal prefers this contemporaneous record of the incident prepared by Mr Blundell to the statement prepared by Ms Spooner almost two years later. The Tribunal is fortified in this view by the fact that Ms Spooner confessed the remark to her supervisors. This conduct suggests that she had been overheard as recorded by Mr Blundell. Ms Warzecha also gave evidence to the Tribunal that she was aware that the comment was known to many people in the workplace.

41 The Tribunal accepts that Ms Spooner’s derogatory remark was overheard by a number of people in the workplace, and that Ms Velagapudi’s supervisor, Saini Fa’alago, was informed of the remark well before it was made known to her. This evidence supports Ms Velagapudi’s claim that her work colleagues knew about the remark and had been talking about it by the time she learnt of it, adding to her feelings of distress and humiliation. It is noted in this regard that the Applicant consulted her doctor, Dr Siva Guru whom she told that she could not face the people at work and was embarrassed and humiliated by the remark. This situation amounts to a detriment to the Applicant and the Tribunal considers that it is a real detriment and not trivial.

42 It is the Tribunal’s view that the injury to the Applicant once she learnt of the remark was compounded by the fact that her colleagues already knew about it and had been talking about it.

43 The Tribunal is satisfied that the remark amounted to "less favourable treatment" and that a person who was not of the same race in the same or similar circumstances would not have been treated the same. It was submitted on behalf of the Respondent that there was no "treatment" of the Applicant because the remark was not said to her directly and she only heard of it at a later time. Reliance was placed on a decision of the Tribunal in Carter v Linuki Pty Ltd t/as Aussie Hire & Anor (2004) NSWADT 287. In that case the complainant alleged she believed her employer had arranged a prostitute to attend a work party. The complainant was present at the Respondent’s premises but did not attend the party. She did not see what happened but formed a belief about what she thought may have happened and brought a complaint of sex harassment and sex discrimination. The Tribunal in that matter said that the complainant’s allegations were based only on inferences she drew from certain experiences, principally sounds and silences she heard but that there was no conduct "in relation" to the complainant or "treatment" of the complainant. It was submitted on behalf of the Respondent in the proceedings before this Tribunal that the complainant in Carter’s case complained about conduct, which was in her vicinity and not six weeks later whereas Ms Velagapudi did not hear the remark and only heard about it some weeks later.

44 In Carter’s case the conduct did not relate in any way to the complainant. In the proceedings before us the remark was about the Applicant and it was overheard by the Applicant’s colleagues and was then conveyed to the Applicant by a union delegate, who considered the remark inappropriate. The circumstances are entirely distinguishable from those in Carter’s case and the Tribunal is satisfied that there was treatment of the Applicant, even though she did not hear the remark at the time it was made.

45 It was submitted on behalf of the Respondent that the Applicant failed to lead any evidence with respect to a real or notional comparator against which her claim may be tested. No evidence was adduced that shows that a person, not of her race, would have been treated more favourably in the same circumstances.

46 It is true that no evidence was adduced as to a real or hypothetical comparator by the Applicant. However the Tribunal is of the view that it can be inferred from the facts that the Applicant was treated less favourably because of her race. The circumstances of the remark were that Ms Spooner became frustrated by Ms Velagapudi’s inefficiency and she went to another area and called out the words "lazy black bitch". The remark made by Ms Spooner alluded to the Applicant’s race by reference to the colour of her skin in a derogatory and offensive manner. The question to be considered with respect to differential treatment is whether a person not of the same race/colour as the Applicant would be treated more favourably. It is highly improbable that hypothetically a person not of the Applicant’s race or colour would be called "lazy black bitch" if that person did not have black skin, but would more likely simply be referred to as a "lazy bitch". It can be inferred from the fact that the Applicant’s race/colour was referred to in a derogatory way in the remark means that a person not of that race/colour would not have been referred to in the same way and would have been treated "more favourably" because there would be no added derogatory reference to the person’s race. The Tribunal is satisfied that the differential treatment the Applicant received was on the ground of her race and that she was treated less favourably than a person not of her race/colour would have been treated in the same or similar circumstances.

47 The Applicant claims that management did not take her complaint seriously, that its response was dilatory, it required her to accept an apology, which was not genuine and she was required to be supervised by Mr Milthorpe, Ms Spooner’s boyfriend.

48 The Respondent submitted that the Applicant’s complaints were taken seriously, investigated promptly, that Ms Spooner was given a written warning and that Ms Spooner apologised to her.

49 It was submitted on behalf of the Respondent that Ms Velagapudi acted unreasonably because she would not be satisfied until Ms Spooner’s employment was terminated. It was submitted that there was no evidence that Ms Spooner’s apology was not genuine.

50 The Tribunal does not agree with the submission that the apology was genuine. Ms Spooner’s own evidence is that she apologised to Ms Velagapudi because she was asked to do so by Doug Pursey, one of the union delegates, after a complaint had been made by the Applicant. Ms Spooner’s own evidence is that when Ms Velagapudi asked her why she had made the remark, she replied "because it’s the truth". It was not until the hearing that Ms Spooner explained that she meant that it was true that the Applicant was lazy. It is the Tribunal’s view that a reasonable person would not consider that such an apology was sincere or genuine. On her own evidence there was no attempt by Ms Spooner to convey sincere regret at causing injury or distress to the Applicant. Indeed she felt justified in uttering her remark.

51 Following the "apology" Ms Velagapudi complained again to management. Following the second complaint, Mr Milthorpe was appointed as supervisor of Ms Velagapudi. There is no dispute that Mr Milthorpe and Ms Spooner were in a relationship at the time and that it was well known. Ms Velagapudi claims that this appointment had sinister motives it to either victimise her to expose her to victimisation. Mr Blundell’s evidence is that it was made for operational reasons.

52 The Tribunal accepts Mr Blundell’s evidence in this regard as there is no evidence before it to support Ms Velagapudi’s suspicions. However, the Tribunal is of the view that a reasonable person would have regarded such an appointment, given the circumstances, as inappropriate. Mr Milthorpe’s own evidence was that Ms Spooner told him about the complaint made about her by Ms Velagapudi around 20 August 2003 after she was interviewed by Mr Blundell. By the time of his appointment towards the end of August 2003 Mr Milthorpe would have known that Ms Velagapdui was demanding the termination of Ms Spooner’s employment. Regardless of whether there was any actual victimisation by Mr Milthorpe, there was potential for victimisation and Ms Velagapudi justifiably felt under threat. The appointment of Ms Milthorpe was injudicious given the close relationship between Mr Milthorpe and Ms Spooner.

53 The Tribunal considers that Mr Milthorpe’s appointment as Ms Velagapudi’s supervisor demonstrates an insensitivity and lack of awareness on the part of management as to what the remark meant to Ms Velagapudi, the content of the apology and the manner in which it was given by Ms Spooner and how to address the problem as well as a failure to take Ms Velagapudi’s complaint seriously. Even if the initial appointment could be overlooked as an error of judgment, the fact that management refused to correct the error despite Ms Velagapudi’s constant complaints about Mr Milthorpe cannot be so easily excused. These complaints, whether justified or not, were a clear indicator to management that the problem was not being addressed properly. These complaints by Ms Velagapudi between September 2003 to September 2004 arose primarily because of her perception of a bias against her by Mr Milthorpe because she had complained against Ms Spooner’s discriminatory remark. An example that fuelled her perception is that on a couple of occasions Ms Spooner was asked by Mr Milthorpe to work in the same area as Ms Velagapudi when staff were shorthanded despite the discomfort this caused Ms Velagapudi. Mr Blundell’s evidence on this point was that it was inappropriate and that Mr Milthorpe should "think outside the square".

54 Mr Davis gave evidence to the Tribunal that he would not consider a transfer for Ms Velagapudi because he did not want to set a precedent for other employees to be transferred at will. He considered that the matter was resolved because Ms Spooner had apologised. Although no attempt was made by the Respondent to investigate the content of the apology or the manner in which it was given. There is also uncontested evidence that in August 2004 Mr Davis suggested to Ms Velagapudi that she should make a friendship with Ms Spooner and Mr Milthorpe. This suggestion and attitude of the management is, in the Tribunal’s view, an inappropriate response to a problem that had been allowed to fester for about a year by the Respondent without any real attempt to resolve the issues between Ms Velagapudi and Mr Milthorpe and Ms Spooner. It was considered by management that Ms Velagapudi was unreasonable and making vexatious complaints about Mr Milthorpe.

55 The Tribunal finds that the Respondent failed to take Ms Velagapudi’s complaint seriously and failed to take all reasonable steps to properly investigate and resolve it.

56 Accordingly, having considered all of the evidence before it, the Tribunal finds that the remark made by Ms Spooner amounted to discrimination within the terms of section 7 of the ADA and that Ms Velagapudi was subjected to a detriment in accordance with section 8 of the ADA being not only the remark, but also the inappropriate and unreasonable handling of the complaint by the Respondent which resulted in the detriment to Ms Velagapudi being her distress and humiliation being compounded and prolonged.

57 Accordingly, the complaint of race discrimination is substantiated.

What Ms Velagapudi must prove re her Complaint of Victimisation and Findings and Reasons

58 As stated earlier in this decision Ms Velagapudi made a number of complaints of victimisation spanning the period September 2003 to September 2004.

59 Under section 50 of the ADA the Respondent will have victimised Ms Velagapudi if it subjected her to a "detriment" because she alleged that the Respondent had contravened the ADA. The relevant parts of section 50 are as follows:

50(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

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

60 The onus is on Ms Velagapudi to prove that the Respondent or its employees caused her to undergo or experience something which caused her a detriment because she made a complaint. The Tribunal must be satisfied that there is a causal link between the making of the complaint and the incidents she has alleged. The Tribunal has examined the evidence before it carefully and is not satisfied that a causal link has been established. The Applicant has identified a number of incidents in which she perceived she was treated unfairly by Mr Milthorpe, Ms Moscato and other co-workers. These appear to the Tribunal to be based on a belief that Mr Milthorpe, by reason of his association with Ms Spooner, made operational decisions which were adverse to Ms Velagapudi.

61 The Tribunal has considered the reasons given by Mr Milthorpe with respect to each incident and has considered whether any inferences could be drawn out of the evidence. The Tribunal is satisfied with the reasons provided by Mr Milthorpe, Ms Moscato and Mr Blundell and is satisfied that the explanations given are probable and reasonable. The Tribunal is not satisfied that the appointment of Mr Milthorpe was made as a result of the Applicant’s complaint. The appointment was done in an ill-considered way without any thought as to likely impact on the Applicant. The Tribunal accepts the evidence of Mr Blundell that Mr Milthorpe’s appointment was because he was considered the best man for the job. This complaint is not substantiated.

62 The Applicant claims that overtime ceased to be offered to either herself or her husband between June 2003 and August 2003 but the overtime was recommenced in September 2003. The Applicant claims that Mr Milthorpe was responsible for the overtime roster and determined who received overtime. The Applicant claims that she was not given overtime because she had complained about Ms Spooner’s remark and/or because Mr Milthorpe held the same racist views as his girlfriend. First, the Applicant’s own evidence is that overtime ceased prior to any complaint being made or, indeed, prior to any knowledge on her part of the remark. There can be no victimisation in relation to events, which predated the Applicant’s complaint. Accordingly, the provisions of section 50 are not satisfied. Secondly, there is no evidence before the Tribunal that Mr Milthorpe held any racist views. Indeed, the evidence is that Mr Milthorpe worked with Ms Velagapudi previously with no problems and Ms Velagapdui was allocated overtime as were other workers of Indian background.

63 With respect to the complaints of being isolated at work, being directed to move from Q line to T line while Ms Spooner was working on Q line, no help with picking sandals, being left with 9 aisles to pick from, being picked on by Ms Moscato, complaint about the Applicant failing to sign the totes, complaint made about the Applicant failing to follow directions and being asked to move to S line, complaint of disturbing co-workers, harassing supervisor, being told to make a friendship with Ms Spooner, Ms Spooner working in her area, the Tribunal is not satisfied that the Applicant has discharged the onus as there is no evidence of a causal nexus between the incidents and the fact that the Applicant made a complaint. There is insufficient evidence from which to draw any inference that the incidents occurred because the Applicant had made a complaint of discrimination. These complaints are not substantiated.

64 With respect to the complaint of victimisation that Mr Blundell wanted to move the Applicant to another job and forcibly moved her from the assembly line to credit putaways and replenishment work, the Tribunal is not satisfied that the causal nexus has been established. The evidence before the Tribunal is that around September 2003 discussions took place between Mr Pursey and Mr Blundell as a result of which Ms Velagapudi was moved to credit duties and was managed by Russell Heke as the team leader. Mr Milthorpe’s evidence was that he was not aware that Ms Velagapudi had made a complaint about doing credit work. Mr Milthorpe said that Ms Velagapudi was good at doing credit work and had a high productivity level in this type of work. Mr Blundell’s evidence was consistent with Mr Milthorpe’s and he stated that Mr Pursey had made the suggestion to move Ms Velagapudi because she had complained about her workload. Ms Velagapudi complained that she had not been consulted about this move and that Mr Pursey told her that the move was at her request, which was not true. Mr Pursey was not called to give evidence by either the Applicant or the Respondent. Even if there was no request by the Applicant in this regard, the Tribunal is not satisfied that there is sufficient evidence to establish a causal nexus between the move and the fact that she had made a complaint. The Applicant’s own evidence was that she was struggling to complete her work on "T" line in the days prior to the move to credits and that Mr Milthorpe was aware of this. The Tribunal is satisfied on this basis that, on a balance of probabilities, the reason for the transfer as stated by Mr Blundell. This complaint is not substantiated.

Relief

65 Following the referral of the Applicant’s complaint to the Tribunal in October 2004, the ADA was amended by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 which came into force on 2 May 2005. The Savings and Transitional provisions of that Act provide that the former section 113 of the ADA applies to proceedings already before the Tribunal that were not finally determined before the repeal of that section.

66 Section 113 of the ADA at the relevant time provided that the Tribunal has the power to dismiss the complaint or find a complaint substantiated. Where a complaint is substantiated the Tribunal is able to make orders, including an order that the complainant be paid damages not exceeding $40000 by way of compensation for any loss or damage suffered by reason of the Respondent’s conduct.

67 General damages for non-economic loss cover matters such as hurt, humiliation and injury to feelings. As acknowledged by His Honour, Wilcox J in Hall –v- Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult:

....damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant’s relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon the complainant by failing to grant relief in respect of a proved item of damage.

68 The Applicant claims that she was hurt, distressed and humiliated by the conduct of the Respondent and its employees. The Tribunal notes in this regard that the Applicant consulted Dr Siva Guru on 26 August 2003, 2 September 2003 and again on 30 October 2003 regarding the events at work. According to the doctor’s clinical notes and to her evidence to the Tribunal the Applicant complained to her about what had happened. The doctor recorded that the remark upset her and she felt insulted, humiliated and embarrassed and unable to face people at work. She was experiencing symptoms such as tightening of the chest and elevated blood pressure with difficulty sleeping. She was thinking about the incident all of the time. It is evident that the incidents at work had a significant impact on her. However it appears that the Applicant’s physical reaction to the incident had resolved by 30 October 2003. It is recorded in the doctor’s notes for 30 October 2003 that the Applicant is "able to cope working normal duties". Nonetheless, the Tribunal accepts the Applicant’s evidence that she continued to feel vulnerable and distressed at work and the issue was not resolved even up to September 2004.

69 It is the Tribunal’s view that an amount of $5000 by way of compensation for the remark is appropriate, given that the Tribunal has found that the apology was not genuinely given. The Tribunal is also of the view that an additional amount of $10000 should be paid to the Applicant by the Respondent by way of compensation for the inappropriate and unreasonable handling and subjecting her to prolonged detriment which had an adverse impact on the Applicant and her enjoyment of life and work, bringing the total to $15000 for general damages.

70 The Applicant also sought special damages for reimbursement of sick leave for the period 27 August 2003 to 8 September 2003, a new claim that on 29 September 2005 she was denied the opportunity for a transfer and was forced to proceed an annual leave from 2 February 2004 to 15 March 2004 as well as lost overtime.

71 The overtime claim has not been substantiated and so there is no relief for this claim.

72 There is no evidence before the Tribunal about a transfer on 29 September 2005. It may be that this should read 29 September 2003 and that this is a reference to the events at that time but again this claim was not substantiated, so no relief can be afforded the Applicant.

73 Sick leave was taken for the period 27 August 2003 to 8 September 2003 because workers compensation was denied for that period. The Tribunal is of the view that to reimburse the sick leave for this period would be in effect to determine that the Applicant should have received workers compensation for that period and this is not within the jurisdiction of this Tribunal.

Costs

74 The Respondent has submitted that it wishes to make submissions regarding costs. If the Respondent decides to continue with this application as foreshadowed, it should file and serve written submissions in respect of that application within 14 days of the date of these Orders and the Applicant to file and serve submissions in reply within 14 days of receipt of the Respondent’s submissions.