Vuong v Casabake Pty Ltd [2009] NSWADT 279 (9 November 2009)

Last Updated: 4 December 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Vuong v Casabake Pty Ltd [2009] NSWADT 279


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
To Tu (Raymond) Vuong

RESPONDENT
Casabake Pty Ltd



FILE NUMBERS:
081049

HEARING DATES:
22 December 2008
21 April 2009 and 8 May 2009

SUBMISSIONS CLOSED:
8 May 2009



DATE OF DECISION:
9 November 2009

BEFORE:
Grotte E - Judicial MemberMooney L - Non-Judicial MemberO'Sullivan M - Non-Judicial Member





LEGISLATION CITED:
Anti Discrimination Act NSW 1977
Evidence Act 1995

CASES CITED:
Burns v Laws (EOD) [2008] NSWADTAP 32
Qantas Airways v Gama [2008] FCAFC 69
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26
Dutt v Central Area Health Service [2002] NSWADT 133
Shaikh –v- Police and Community Youth Clubs NSW Ltd & Ors (2003) NSWADT 15
Sivananthan –v- Commissioner of Police, NSW Police Service (2001) NSWADT 44
Wollongong City Council –v- Bonella & Ors & Bonella & Ors –v- Wollongong City Council (EOD) (2002) NSWADTAP 26
Hall –v- Sheiban (1985) ALR 503

TEXTS CITED:


APPLICATION:
Race Discrimination; Employment, Victimisation

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
In person


ORDERS:
1. The Tribunal orders Casabake Pty Ltd to pay to Mr Vuong $16,406 for economic loss for victimisation within 28 days of the date of this decision
2. The Tribunal orders Casabake Pty Ltd pay to Mr Vuong $12000 as general damages for the racial discrimination within 28 days of this decision.


Reasons for Decision:

REASONS FOR DECISION

Complaint to the Anti Discrimination Board

1 On 25 October 2007 Mr To Tu Vuong lodged a complaint with the Anti-Discrimination Board (ADB) alleging race discrimination and victimisation in his workplace.

2 Mr Vuong claimed that on Friday 5 October 2007, his manager, known to him as Zaal (Mr Ngozi), spoke to one of his Vietnamese co-workers, Dan, and said "I hate Vietnamese". Mr Vuong claimed that Zaal said that he was joking. Mr Vuong claimed that he and other Vietnamese workers heard Zaal and Dan arguing. Zaal refused to apologise for his comment. Mr Vuong claimed that Zaal then told all of them "Anyone who speaks Vietnamese get out!" and then he slammed the table. Mr Vuong claimed that he and the other workers went to see "Domenic" (Barbaro), the director of the business, to complain about what had happened. Mr Vuong claimed that Mr Barbaro denied seeing or hearing the incident and did not say anything other than "I don’t know". Mr Vuong claimed that Mr Barbaro should have said something to Zaal. Mr Vuong claimed that he and the other workers were angry about what had happened and upset and they went home. Mr Vuong claimed that he later received a letter from Mr Barbaro attached to his pay slip, stating that Mr Barbaro was disappointed that he had walked out on his job, given that it was a very busy Friday and so, four hours pay was taken out of his holiday pay. Mr Vuong claimed that all of the workers received this warning letter. Mr Vuong claimed that he was not happy with Mr Barbaro because he did not take appropriate action against Mr Ngozi, who was not a good manager. There had been previous incidents involving Mr Ngozi and some of the staff.

3 Mr Barbaro responded to the ADB on 15 November 2007. He stated around 11:00am on Friday 5 October 2007 he was in the packing room when he saw three of his employees, Tony Tu, To Tu Vuong and Hoang Gia Le, leaving the bakery. He asked them what had happened and they told him they were leaving. Mr Barbaro stated that he asked Zaal what had happened and he said he had been joking with Dan Hua and Ajay Kumar. He said that Dan became upset and then Tony became involved and made the situation worse. Mr Barbaro said that Tony asked the other Vietnamese staff to leave with him. Mr Barbaro claimed that as a result he had to employ other staff to do their jobs in the bakery area because he was left short staffed on the busiest day of the week. He stated that Mr Tu and Mr Hong Gia Le returned to collect their pay at 5:00pm and he has not heard from either of them since. He stated that about three days later Mr Vuong returned to apologise to him, acknowledging that he had made a mistake and wanted his job back. Mr Barbaro told Zaal to give him back his position, which he accepted without any problems. Mr Barbaro stated that he was very surprised to receive a letter of complaint, because Zaal is not racist and he has improved productivity and the bakery employs people from various ethnic, racial and religious backgrounds.

4 Mr Barbaro attached various statements to his response including a statement from Zaal Ngozi, Dan Xuong Hua, Ajay Kumar and Dario Lavega.

5. Mr Ngozi stated that on 5 October 2009 he was joking with Ajay about Fiji and South Africa in the packing area near the toilets. He said that he hated Fiji to Ajay and at that moment Dan Hua walked past them. Mr Ngozi said that as he did, he also said, "I hate Vietnamese too". Mr Ngozi stated that Dan was offended by this remark, but he claimed he told Dan that he was joking. He returned to the bakery and Dan came after him and told him he did not like what had been said and told him not to do it again. Mr Ngozi said that he did not apologise but he repeated that he had been joking. Mr Ngozi said that Dan told the other Vietnamese workers about what was said and the situation deteriorated. Dan finished his shift and left for the day, but the other Vietnamese workers, being Tony Tu, To Tu Vuong and Hoang Gia Le came to see him and they told him they were proud of Vietnam and he should not joke about it. Mr Ngozi said that he then said that they should be fighting for Australia, because they are Australian citizens and Australia has given them everything they have earned. He then said, "and when we are working around the table nobody to speak Vietnamese anymore. We all speak English so we understand each other". Mr Ngozi claimed that Mr Tu stated, "If we don’t speak Vietnamese we will leave the bakery." Mr Ngozi told him not to speak on behalf of the other Vietnamese workers, but if he wanted to leave he could. Mr Ngozi said that Tony Tu decided to quit. Mr Vuong and Hoang Gia Le also left. On the following Monday Mr Ngozi apologised to Dan Hua, who accepted his apology in the presence of another staff member, Dudley Duc Ly Minh. Mr Ngozi said that three days later Mr Vuong returned to the bakery and apologised to Mr Barbaro, requesting his job back. Mr Ngozi said that there is no racism at the bakery and that more than 10 different nationalities are employed there.

6. The statements from Dan Xuong Hua, Ajay Kumar and Dario Lavega consisted of one word or very brief answers to the same questions posed by the Respondent to each witness. The statements confirmed the incident, confirmed that Mr Ngozi was joking and that the witnesses were no longer upset by the incident and stated that Mr Ngozi was not racist but was a fair person with a sense of humour.

7. In response to these statements Mr Vuong stated that he left the bakery on the Friday not because Tony told him to, but because Mr Ngozi had said "Whoever speaks Vietnamese go out". Mr Vuong also denied that he returned to apologise and ask for his job back. He said that he returned a few days later to check if he still had a job. He claimed that he was told to take two weeks off work. He then returned at the end of the two week period and was told by Mr Barbaro to take another two weeks off work. He claimed that Mr Ngozi called him on 10 November 2007 to return to work. He worked from 10 November 2007 to 20 November 2007 but was paid $25 less per week for this period. He claimed that for the previous year he had been paid $606 by cheque after tax per week plus $25 in cash. For the period 10 November 2007 to 20 November 2007 he was not paid the additional $25 in cash. Mr Vuong stated that he asked Mr Barbaro and Mr Ngozi in the presence of another worker who interpreted for him, Dudley, why he was not paid his usual extra $25. He claimed that he was told by Mr Barbaro "If you don’t like it you can leave work".

8. Mr Vuong also complained to the Workplace Ombudsman that he had not been paid for time worked, not been paid allowances, superannuation, for meal breaks and underpaid the hourly rate. The complaint was investigated. The Workplace Ombudsman reported on 29 January 2008 that Mr Vuong was employed by Casabake Pty Limited on a full time basis and the terms and conditions of his employment were governed by the Bread Industry (State) Award. The Ombudsman identified no breach. Mr Vuong was paid $18.95 per hour, well above the award rate, even taking into account ordinary and overtime rates provided under the award. He was advised to contact the Australian Taxation Office regarding the non-payment of superannuation. The allegation made by Mr Vuong to the Workplace Ombudsman for not being paid for time worked was not substantiated. No breach was identified by the Ombudsman in relation to being required to take annual leave following the incident on 5 October 2007.

9. The complaint was not able to be conciliated by the ADB and on 1 May 2008 the President of the ADB referred to the complaint to the Tribunal under section 93C of the Anti-Discrimination Act 1977.

Tribunal Hearing

10. The complaint was listed for hearing on 22 December 2008. On that day Mr Vuong represented himself but had the assistance of an interpreter. The Respondent was represented by Mr Ngozi (also known as Sipho El Zaal). No one else appeared for the Respondent.

11. In his oral evidence to the Tribunal Mr Vuong confirmed the details of the complaint he made to the ADB and he said that he felt that Zaal spoke in anger when he said "I hate Vietnamese". When Zaal was asked to apologise he refused and a group of them complained to the boss, Mr Barbaro. Mr Barbaro told them he could not do anything. He felt as if he had been dismissed from his job. He was uncertain if he should return to work. At the time of the incident he had been working for the Respondent for a period of three years. Mr Vuong told the Tribunal that during that period he was not working he made a complaint to the ADB and to the Workplace Ombudsman. Mr Barbaro received a letter of complaint from the ADB. Mr Barbaro asked him to come back to work and after he had been back at work for two days, Mr Barbaro asked him why he had made a complaint to the ADB. Mr Vuong said that he told him it was because he believed that he had been dismissed unfairly. Mr Barbaro asked him to withdraw his complaint but he refused. Mr Vuong claims that Mr Barbaro then reduced his wages by $5 per day, totalling $25 for the week. He claims he asked Mr Barbaro about this and Mr Barbaro said, "That’s it. If you want to stay and work, its okay. If you don’t, go home." He refused to explain the reduction. Mr Vuong claims he left and his employment was terminated. He has remained unemployed since that time.

12. Mr Vuong produced a letter to him from Domenic Barbaro, Director of Casabake Pty Ltd, dated 5 October 2007. This letter stated as follows:

Please be informed that this letter is your first formal notice/warning.

I wish to advise in the event of you walking out of your job today, I was very disappointed with your actions. Friday is a very busy day for production and it leaves me with no option but to take 4 hour out of your holiday pay.

13. On 21 April 2009 evidence was given on behalf of Mr Vuong by Hoang Le, Tony Tu and Dan Xuong Hua.

14. Mr Le told the Tribunal that at the time of the incident on 5 October 2007 he had been working for the Respondent for about three months. His job was mixing the dough for which he was paid $16 per hour, that is, about $450 per week after tax. Mr Le told the Tribunal that Zaal had said something to Dan like ‘he did not like Vietnamese people’. Dan told Mr Le about what had been said. Zaal then came over and said that he did not mean to say that and Dan then told him that he should not have talked like that . Dan told Zaal he had to apologise, but Zaal did not. Mr Le said meanwhile he, Dan, Vuong and Tue were standing around in the bakery making cakes and speaking to one another in Vietnamese. Zaal told them he did not want them speaking in Vietnamese and said that anyone who speaks in Vietnamese should leave. Mr Le said that there is no law forbidding them speaking in Vietnamese and then Zaal and Tony Tu got into an argument. He said that Tony Tu, Vuong and he complained to the boss but the boss simply shrugged his shoulders. Tony Tu spoke with Mr Barbaro in English. Mr Le said that he left and went home as a result and has not returned. He found another job on 11 October 2007. Mr Le said that on 5 October 2007 he received a warning letter and that is why he decided not to return. He did not like having troubles at work. He knows that the others also received it.

15. Tony Tu told the Tribunal that at the time of the incident on 5 October 2007 he was working for the Respondent part-time, three days a week, earning about $200 per week, because he had been previously injured at work. He said that the manager, Zaal, had an argument with a Vietnamese worker, Dan about not being allowed to speak Vietnamese in the workplace. Mr Tu was not happy because he believed that he should be able to speak Vietnamese with his fellow Vietnamese workers. Mr Tu said that he asked Zaal to explain why he could not speak Vietnamese. Zaal told him that if he did not like it, he could go home. He and Hoang and Le complained to Mr Barbaro, but he said he could not do anything and if they wanted to go home they could. He returned to work the following day to collect his pay and he received a warning letter from Mr Barbaro. He said that all of the Vietnamese people who went home received this letter. He did not return to work there because it was not a happy workplace. He said that the manager discriminated against Vietnamese people.

16. Dan Xuong Hua told the Tribunal that he had worked for the Respondent for four years and that he ceased working in March 2008. He mixed dough, baked cakes and operated the oven. He said that the Respondent employed a lot of Vietnamese people and that Mr Vuong and he were the longest serving employees. He said that the incident occurred on Friday 5 October 2007 around midday. He said that he saw Zaal in the packing area when Zaal said "I hate Vietnamese". He stopped and said to Zaal, "You shouldn’t have said that". After he returned from the toilet he continued to work and he told everyone what Zaal had said to him. Everyone was unhappy. They went to speak with Zaal and told him he should have not have said what he said. He disagreed and banged the table. Zaal told Dan to finish his shift and go home. Dan went home. He did not speak to Mr Barbaro. He said that he worked six days a week and so he returned to work the following day, which was Saturday. He was told by his friends about what had happened.

17. During the course of the hearing on 22 December 2008 Mr Ngozi was asked to inform Mr Barbaro that the Tribunal wanted to give him an opportunity to respond to the claims made by Mr Vuong and the other witnesses and to put his side of the story to ensure procedural fairness. Mr Ngozi was informed by the Tribunal that there were two complaints before the Tribunal – the complaint of race discrimination and the complaint of victimisation and that in the absence of any evidence from Mr Barbaro, the Tribunal would proceed to determine the complaints.

18. On 21 April 2009 Mr Ngozi did not appear on behalf of the Respondent. Ms Franca All and Mrs Barbaro appeared instead. The Tribunal was informed that Mr Barbaro was not available to appear because he had to travel overseas.

19. Ms All gave evidence to the Tribunal on behalf of the Respondent. Ms All has been employed as the Respondent’s bookkeeper since about May 2006. Ms All told the Tribunal that Casabake Pty Ltd is the premises at which Vieto Bakery trades. She said that Groke Pty Ltd was the management company but that this company was deregistered in December 2007 at which time management of Casabake was taken over by Lisana Pty Ltd. Lisana Pty Ltd was registered in March /April 2007. The Director of both Groke Pty Ltd and Lisana Pty Ltd was Luigi Fotia. Domenic Barbaro was the owner of Casabake Pty Ltd. As the bookkeeper Ms All entered all invoicing, drew the cheques for payment of wages and reconciled the books. The wages were paid weekly. Ms All also collected all of the time sheets. She was shown the warning letter produced by Mr Vuong to the Tribunal dated 5 October 2007. She said that she recognised the signature as belonging to Mr Barbaro. She said that she did not recall any pay being docked.

20. The proceedings were stood over until 8 May 2009 to enable Mr Barbaro to give evidence to the Tribunal. Mr Barbaro told the Tribunal that Casabake Pty Ltd is a trading name. He is the Director of the Casabake Pty Ltd. Lisana Pty Ltd pays the wages and hires and fires people. Mr Barbaro said that the supervisor makes the decision as to who will be hired and who will be fired. The supervisor is employed by Lisana Pty Ltd. Mr Luigi Fotia is the Director of Lisana Pty Ltd as he was the Director of Groke Pty Ltd. Mr Barbaro said that his job is to manage the bakery for Lisana Pty Ltd. Mr Barbaro told the Tribunal that when Mr Fotia is not there, he is responsible for hiring and firing people.

21. Mr Barbaro told the Tribunal that on 5 October 2007 three people walked out on the bakery. He said that at the time he was busy with a customer and he did not have a chance to ask them what had happened. Mr Barbaro asked Zaal about it and Zaal told him that he had been joking with Dan and Tony Tu. He denied the incident as stated by Mr Vuong. He denied having a conversation with any of the employees. Mr Barbaro said that Friday is a busy day and he lost production because his employees were not present. He prepared a warning letter and decided to take out four hours of pay to make up for the lost time. He said that action was taken only in relation to Mr Vuong, because he returned to work being a full-time employee but the others did not, because they were part-time. He said that about three days later, Mr Vuong said that he needed his job, so he apologised. He was given back his job although another person had already been employed in it. He said that after Mr Vuong returned to work he did not see him again. He said that he only had one conversation with him. He agreed that he knew about the complaint to the ADB on 7 November 2007, but he denied speaking with Mr Vuong about the complaint. He denied asking him to withdraw his complaint.

FINDINGS AND REASONS

22. Mr Vuong claims that he has been directly discriminated against on the ground of his race in his employment. Mr Vuong is Vietnamese. In the absence of any evidence to the contrary, the Tribunal accepts that Mr Vuong is Vietnamese. He also claims that he was victimised because he made a complaint to the ADB.

23. Relevantly, section 8(2)(a) of the Anti-Discrimination Act 1977 (ADA) makes it unlawful for an employer to discriminate against an employee on the ground of race in the terms and conditions of employment which the employer affords the employee or by dismissing the employee or subjecting the employee to any other detriment. "Terms and conditions of employment" should not be construed narrowly and they have been held to include all legal rights of an employee and legal obligations cast upon an employer including express and implied terms under the contract of employment (Wollongong City Council –v- Bonella & Ors and Bonella & Ors –v-v Wollongong City Council (EOD) (2002) NSWADTAP 26. "Detriment" means "loss or damage or injury" or that the person affected has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter (Shaikh –v- Commissioner of Police, NSW Police Service (2001) NSWADT 44). Section 7 of the ADA provides that a person discriminates against another person on the ground of race, if, on the ground of a person’s race, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race. Race is defined in section 4 of the ADA to include "colour, nationally, descent and ethnic, ethno-religious or national origin". Section 7(2) of the ADA provides that "something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race".

24. The onus is on Mr Vuong to prove that his employer discriminated against him on the ground of his race and victimised him for making a complaint to the ADB.

25. The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, ‘The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: ‘Pointing with a Wavering Finger’, (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]- [90].

26. Further in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (Chand) the Appeal Panel referred to the Federal Court’s discussion of the "Briginshaw standard" in Qantas Airways v Gama [2008] FCAFC 69 [at 55] and concurred with the approach taken by Branson J [at 139] in the Gama decision, where Her Honour stated as follows:

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach, which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved. [Branson J at [139] ]

27. In addition the Appeal Panel referred to s 140 of the Evidence Act 1995 at [56] in Chand. That section provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

28. We have followed the approach set out in Chand, including the factors set out in s 140 of the Evidence Act 1995.

29. The complaint brought by Mr Vuong nominated Casabake Pty Ltd (Casabake) as the employer and Mr Barbaro as the Director of Casabake. Evidence was given by Ms All and Mr Barbarao to the Tribunal that Casabake was not the employer and that the complaint should have been brought against Lisana Pty Ltd. The evidence before the Tribunal indicates that Casabake Pty Ltd is the trading name for the bakery business owned by Lisana Pty Ltd (Lisana), a registered company. Although Lisana was the company, which paid Mr Vuong’s wages as evidenced by his payslips for November 2007, the best evidence before the Tribunal regarding who is the actual employer is contained in the Workplace Ombudsman report to Mr Vuong dated 29 January 2008. In that report one of the matters determined by the Ombudsman Inspector is "Casabake Pty Limited, trading as Casabake Pty Limited (ABN: 67111244618 ACN: 111244618), is an employer within the jurisdiction of the Workplace Relations Act 1996 (the Act). You were employed at Casabake Pty Limited trading as Casabake Pty Limited between September 2004 and November 2007." We are satisfied that Casabake Pty Ltd was the employer of Mr Vuong at all material times. The evidence also indicates that Mr Barbaro was the Director of Casabake and acted with the authority of both Casabake and Lisana to make decisions regarding employment matters in respect of the employees working for Casabake. Mr Barbaro told the Tribunal that he had the authority to hire and fire employees in the absence of Mr Fotia, the Director of Lisana Pty Ltd. We are fortified in this view by the warning letter to Mr Vuong dated 5 October 2007 signed by Mr Barbaro. We are also satisfied that Mr Ngozi was authorised to hire and fire people and to supervise the employees on behalf of Casabake and Lisana.

30. Section 53 of the ADA provides that "an act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act." Subsection (2) provides that if the employer and the agent and employee are subject to any liability, they are both jointly and severally liable. The employer is able to avoid liability if it can show that it took all reasonable steps to prevent the agent or employee from contravening the Act. It is well established that permission or authority may be inferred from inactivity on the part of the employer/principal.

31. Accordingly, if it is established that Mr Ngozi discriminated against Mr Vuong on the ground of his race in employment then the unlawful act of discrimination is taken to have been committed by Casabake, unless Casabake can show that it took reasonable steps to prevent Mr Ngozi from contravening the ADA or it can show that it did not permit, sanction, approve or countenance the act. It is only the employer that can be held liable for race discrimination in employment, so that no order would be made against Mr Ngozi.

32. There is conflicting evidence before the Tribunal as to what happened on 5 October 2007 and afterwards at the bakery. We prefer the evidence of Mr Vuong, Mr Tony Tu, Mr Hoang Gia Le and Mr Dan Xuong Hua because their evidence was consistent with each other and because their evidence was consistent throughout the process and because it was plausible. The fact that Mr Tu returned to Casabake only to collect their pay is support for the conclusion that they felt they had lost their jobs. Furthermore, neither Mr Le nor Mr Tu had anything to gain because they both obtained other employment. They both said they did not wish to return to the bakery because it was not a happy workplace.

33. We do not accept Mr Barbaro’s evidence nor Mr Zaal Ngozi’s evidence that Mr Ngozi had been joking with the Vietnamese employees, because of the evidence of those witnesses, who left their work that day because they were upset and because two of them decided not to return there because it was not a happy workplace. We are satisfied on balance that on 5 October 2007 Mr Ngozi said to Dan that he hated Vietnamese and to Mr Vuong and the other Vietnamese workers that they could not speak Vietnamese in the workplace and if they did, they had to leave the work premises. We are not satisfied that they believed that Mr Ngozi was joking. We are satisfied that they considered him to be serious and that they had to follow his directive unless the boss intervened.

34. We are also satisfied that Mr Vuong, Mr Tu and Mr Hoang Gia Le were uncertain as to whether they should leave as instructed by Mr Ngozi and so they went to speak with Mr Barbaro, the person they considered to be the boss, to fix the issue and to speak with Mr Ngozi. We are satisfied that Mr Barbaro did not do anything about their concerns and that, as a result, they felt they had no option but to leave. We do not accept Mr Barbaro’s denial that he did not speak with Mr Vuong, Mr Tu, Mr Le and Mr Hua because the weight of the evidence is in favour of those witnesses. Mr Barbaro’s explanation that they left of their own accord without speaking with him is not plausible and in any event, we had the opportunity to observe Mr Vuong, Mr Tu, Mr Le and Mr Hua give their evidence and we found them to be credible witnesses, forthright and convincing. On the other hand, we found Mr Barbaro to be evasive and unhelpful. We are satisfied that Mr Barbaro did not take any steps to prevent Mr Ngozi’s remarks regarding their capacity to speak Vietnamese in the workplace to one another and did not intervene to reassure his workers that they could return to work. We consider that a reasonable boss would have made some enquiries regarding what was said at the time and determined whether it was an appropriate directive. We consider that a reasonable boss would have also ascertained whether there was some way of resolving the conflict to ensure a harmonious workplace, given that some of the workers do not speak English very well and may only be able to speak Vietnamese. Furthermore, English did not appear to be a requirement to carry out the work. It is noted in this regard that Mr Vuong had been a full time employee of the bakery for a period for two years by the time of the incident. Mr Barbaro did not do anything, thereby implicitly authorising Mr Ngozi to act as he did and he allowed the workers to go home, thinking they no longer had a job. We are satisfied that Mr Barbaro then reduced Mr Vuong’s holiday pay by four hours and forced him to take his annual leave for a period of about five or six weeks.

35. In order to determine whether any of Casabake’s conduct or the conduct of its employees or agents (Mr Ngozi) constitutes direct discrimination on the ground of race, we must ask ourselves whether the conduct complained of amounts to differential treatment and, if so, whether that treatment was on the ground of race (Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231] (Purvis) the High Court said that those two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially.

36. The approach stated by the High Court in Purvis is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amounts to a single question, that is, why was the person treated as he was? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 at [7] and [8]) and in Dutt v Central Area Health Service [2002] NSWADT 133 (Dutt) where the Tribunal stated:

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 for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently.

In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: `but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'.

This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise.

37. The majority of the High Court in Purvis said that:

... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

38. The ADA uses the words "on the ground of", rather than "because of" but no different meaning is intended.

39. In the present circumstances in order to determine whether there has been differential treatment, a comparison must be made between the way Mr Vuong was treated and the way Casabake or its employees/agents treated or would treat a person of a different race in the same or not materially different circumstances. If the comparison produces the conclusion that Mr Vuong was treated objectively less favourably than a person of another race, it is then necessary to consider the reasons for that treatment, that is, causation.

40. There was no evidence before us, however, of any actual comparator. In such circumstances, the comparison can be made with a hypothetical person as confirmed by the Tribunal in Dutt.

41. The evidence before the Tribunal from both Mr Ngozi and Mr Barbaro is that there were other employees of different races working in the bakery. Mr Ngozi and Mr Barbaro told the ADB and the Tribunal that the bakery employed people from various ethnic and racial backgrounds. On 5 October 2009 Mr Ngozi informed the Vietnamese employees that they were not allowed to speak Vietnamese and that if they did, they had to leave the work premises. This prohibition explicitly only relates to people of Vietnamese race and therefore, it must be concluded that no other person of a different race in the bakery was treated in the same way. This amounts to differential treatment. The reason for the treatment is the fact that Mr Vuong is Vietnamese and chose to speak Vietnamese with other Vietnamese employees at the bakery. The prohibition on speaking Vietnamese related solely to working at the bakery and therefore relates to the conditions of employment offered to Mr Vuong. If he chose to speak Vietnamese with his fellow Vietnamese workers, he had to leave the work premises and could not work there. We are satisfied that Casabake, Mr Vuong’s employer, acting through its agent Mr Ngozi, discriminated against Mr Vuong on the ground of his race in the terms and conditions of his employment afforded to him and additionally, by subjecting him to the detriment of not knowing whether he still had a job and requiring him to take his annual leave. We are satisfied that certainty regarding his employment contract is an implied term and that not knowing whether he was still employed in particular, amounts to a substantial detriment. It is noted that Mr Vuong was one of the longest serving employees in the bakery and he did not speak English very well.

42. The complaint of direct race discrimination in employment is substantiated. We are satisfied that Casabake is vicariously liable under section 53 of the ADA. There is no evidence that either Casabake or Mr Barbaro, as its agent, did anything to prevent the act of discrimination. Indeed, the evidence accepted by the Tribunal is that Mr Barbaro did not act at all and therefore by his inactivity he sanctioned, permitted and authorised the act of discrimination.

43. Mr Vuong also alleged that he was victimised because he made a complaint to the ADB. He alleged that the detriment to which he was subjected was that his pay was reduced by $25 per week when he returned to work in November 2007 after his period of absence and when he refused to accept the reduction in pay he was subjected to a further detriment, being a loss of his employment.

44. Section 50 of the ADA makes victimisation unlawful. It provides:

(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,

(b) given evidence or information in connection with proceedings brought by any person 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, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

45. The first element of victimisation is that there is an event, which is a trigger for a subsequent detriment. The evidence before us is that Mr Vuong complained to the ADB on 25 October 2007, while he was still on his forced annual leave. He claimed that after a few days following his return to work in November 2007 Mr Barbaro asked him why he had lodged a complaint to the ADB and asked him to withdraw it. He refused. Mr Vuong claimed that when he was paid for the period of work from 10 November 2007 to 20 November 2007 he was not paid his extra $25 in cash. He claimed that when he confronted Mr Barbaro about the reduction in his pay he was told that he could either accept it or leave his employment. Mr Barbaro denied asking Mr Vuong about the complaint, denied asking him to withdraw it and denied saying that he should leave if he was not prepared to accept the reduction in his wages.

46. As we have stated earlier in this decision, we found Mr Vuong to be a credible witness who has made consistent statements to the ADB and to the Tribunal. His evidence has been corroborated by other witnesses in other respects. Conversely, we found Mr Barbaro to be evasive and vague in his evidence and so, on balance, we prefer the evidence of Mr Vuong to that of Mr Barbaro. We accept that Mr Barbaro reduced Mr Vuong’s wages by $25 in the period 10 November 2007 to 20 to the ADB. We accept that when Mr Vuong voiced his concern about his wages being docked, he was told by Mr Barbaro as the agent of Casabake, the employer, he could accept it or leave the job. We are satisfied that this occurred because Mr Vuong made a complaint to the ADB and then refused to withdraw it.

47. We are satisfied that Mr Vuong suffered a detriment, in that he was forced into the position of having to leave his job, the reduction in his pay and his feeling of humiliation at having his pay cut. These acts of subjecting Mr Vuong to detriment were done by Mr Barbaro as a Director of the employer Casabake and as its agent. Mr Barbaro’s own evidence was that he had the power to hire and fire employees on behalf of the employer. The detriment of loss of employment and reduction in wages can only be inflicted by the employer or someone who has been authorised to act as its agent. The evidence indicates that Mr Barbaro was so authorised. We find that Mr Barbaro was acting as agent for Casabake, the employer, and that Casabake therefore perpetrated the victimisation. Section 50 provides that it is unlawful for a "person" to subject another "person" to any detriment. Section 21 of the Interpretation Act 1987, NSW, provides that a "person" for the purposes of statutory interpretation can be a corporation or a body corporate. Casabake Pty Ltd, the employer, is a corporation and therefore a "person" for the purposes of section 50 of the ADA. The complaint of victimisation by Casabake is substantiated.

48. As a result of the victimisation and of the race discrimination Mr Vuong claims that he lost his job and that he has not been able to find a job since. He claims that at the time he was earning $606 per week plus $25 in cash every week. Section 108(2) of the ADA provides that if the Tribunal finds a complaint substantiated it may order the Respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the Respondent’s conduct. The breaches by Casabake Pty Ltd, in our view, materially contributed to the loss and/or damage suffered by Mr Vuong. The loss of his employment is a direct result of the victimisation.

49. There is no evidence before the Tribunal as to what, if anything, Mr Vuong has done to mitigate his loss. It is noted however, that he is unskilled, his English is limited and he is not a young person. These factors would make it difficult for him to obtain alternative employment on the open labour market. Although Mr Vuong has been unemployed for almost two years, we consider that an appropriate amount of damages for the complaint of victimisation is economic loss for a period of about six months. The evidence before us, which we accept as there is no contradictory evidence, is that Mr Vuong was earning $606 plus $25 per week. We consider that an appropriate amount for damages for economic loss is for six months of being unemployed, which amounts to $16,406 ($606 plus $25 multiplied by 26 weeks).

50. The Tribunal orders Casabake to pay to Mr Vuong $16,406 within 28 days of the date of this decision.

51. In relation to the complaint of race discrimination, we are satisfied that there has been no economic loss as a result of the contravention of the ADA. Despite being required to take leave, there is no evidence before the Tribunal that Mr Vuong was not paid all of his entitlements prior to returning to work in November 2007. The conclusion of the Workplace Ombudsman is consistent with this conclusion. However, we consider it appropriate that there be an award for general damages for the race discrimination complaint which was substantiated, which cover matters such as hurt, humiliation and injury to feelings. As acknowledged by 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.

52. We are satisfied that Mr Vuong suffered distress and humiliation as a result of the race discrimination in that he felt that he had been dismissed unfairly, that he was given an unwarranted warning letter, had four hours taken out of his leave unfairly and he had to experience the insecurity of not knowing if he had a source of income. The Tribunal orders therefore that Casabake pay to Mr Vuong $12000 as general damages for the racial discrimination within 28 days of this decision.