The applicant's claims under s 9(1) of the RD act
134 In her Statement of Claim, the applicant alleges that the respondents discriminated against her in the process of her applying for the position of kindergarten teacher at the centre, and in her four days of employment at the centre, in violation of a number of provisions of the RD Act, and of the convention. In 35 numbered paragraphs, the applicant sets out what she describes as particulars of unlawful discrimination, each being, it seems to me, in the nature of an allegation of conduct, acts or circumstances that, according to the applicant, should be regarded as unlawful pursuant at least to s 9(1), and in some instances also to other provisions, of the RD Act. I have set out those particulars in par 14 above. By reference to the particulars as there numbered, I deal with the applicant's allegations, to the extent that they might relate to s 9(1) of the RD Act, hereunder. That subsection reads as follows:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
135 I shall deal with (i) and (iii) together. The gravamen of the applicant's allegation is that, at the first interview, Mr Sterjov said that people with diplomas were better than teachers, thereby implying that the applicant's teaching qualifications were of little value to La Kosta. Mr Sterjov denied that he had made any such statement, but proffered no alternative version of that part of the interview in which something may have been said that was mistaken by the applicant. The other participant in the interview, Ms Sterjova, gave no evidence on the subject at all. In the circumstances, I am disposed to accept the applicant's evidence, that, at some point in the interview, Mr Sterjov said that people with diplomas were better than teachers. Although there was no argument on the point, I am prepared to assume that a comment of this kind may, and in the present case did, amount to the doing of an "act" for the purposes of s 9(1) of the RD Act. However, the applicant's claim must fail for the reason that, although Mr Sterjov's comment involved a distinction, it was a distinction between those who had, and those who did not have, diplomas. It was not based on race, colour, descent or national or ethnic origin.
136 I shall deal with (ii) and (xiii) together. The essence of each is that the applicant was underpaid. The "act" referred to in (ii) is that the applicant was "initially paid $8.90 per hour", which is said to be "below the minimum forunqualified workers not to say rates for teachers". I cannot uphold this claim as expressed, since, as set out above, the applicant's own evidence, which I have accepted, was that she was initially paid $11.86 per hour. Even were I to proceed on the basis of the substitution of the latter figure for the one set out in the Statement of Claim (notwithstanding the absence of any application to amend), I still could not find that being paid $11.86 per hour was "below the minimum forunqualified workers". There is no evidence of what was the appropriate rate of pay for such workers. Neither was there any evidence of the applicable rate for teachers, although, from the evidence of Mr Sterjov, it seems that it must have been more than $15.80 per hour. Furthermore, it was his evidence that the applicant should have been paid $15.80 per hour, plus a casual loading of 25%. In fact she was paid $11.86 per hour, plus a casual loading. I would find, therefore, that La Kosta impaired the applicant's enjoyment of so much of her human rights as involved the right to favourable remuneration. However, I do not think that La Kosta's actions relevantly could be described as a "distinction, exclusion, restriction or preference" within the meaning of s 9(1). Although I have held that La Kosta paid the applicant less than the $15.80 which it accepted was her entitlement, I can make no finding as to why this was done. The applicant has not proved that it was anything more than an oversight or mistake, done without the conscious attention that is implicit in the phrase "distinction, exclusion, restriction or preference". More importantly, perhaps, there is nothing in the evidence that would sustain the proposition that the underpayment had anything to do with the applicant's race, colour, descent or national or ethnic origin.
137 In (iv), what the applicant refers to as a "Jewish religious star of David" is, it seems to me, a kind of doodle in the form of two triangles drawn one over the other. It has an approximate similarity to a Star of David. It appears in the margin of a document discovered by the respondents. The document is a memorandum of the Department of Human Services. It was apparently prepared by inspectors from the department who visited La Kosta in response to complaints made by the applicant after the termination of her employment. There was no evidence that any of the respondents had anything to do with the writing on the memorandum. Ms Sterjova said that it was the inspectors only who wrote on the document. For that reason, the applicant's allegation is groundless. How in other respects it might have raised issues under s 9(1) of the RD Act is quite mysterious, but, for the sake of economy, I am content to allow it to remain so.
138 I shall approach (v) by considering first the specific examples of oppression mentioned by the applicant. As to the "disapproving facial expressions" referred to, the applicant said that, on the first day of her work at the centre, Ms Matthew did things that were "intimidating and rather offensive", namely, calling her "teacher" (which is dealt with below under (viii)) and by way of the "expression of her face". In her affidavit affirmed on 13 October 2006, the applicant said that, on the last day of her work at the centre, Ms Matthew made "faces of discontent" because she did not like her (the applicant's) assistance at a party for the children, and her service of food at the party (which party is referred to below under (xii)). Viva voce, the applicant said that, from the start of "that last day", she sensed hostility both from Ms McEwan and from Ms Matthew; she said, in relation to both women, that "the look and expression was so hostile". Save with respect to aspects of the address "teacher" and the party, the applicant was not cross-examined on this evidence, and the respondents did not lead any evidence of their own on the subject of the facial expressions of Ms McEwan and Ms Matthew. In the circumstances, I would hold that the applicant has made good her allegation that both Ms McEwan and Ms Matthew made disapproving facial expressions towards her, particularly on the first and last days of her employment. However, I would not hold that the expressions were, objectively, intimidating or offensive, although I allow for the possibility that they may have been perceived as such by the applicant. Neither Ms McEwan nor Ms Matthew was cross-examined on the matter, and there is nothing in the evidence from which I could conclude that the expressions were wilful, or intended to be hurtful, on their part. I hold only that the expressions conveyed the sense of disapproval, as alleged by the applicant in her Statement of Claim. Assuming that each of these expressions may be treated as an "act" within s 9(1) of the RD Act, it is manifest that no other provisions of the subsection are satisfied. An expression of disapproval, without more, does not involve a distinction, exclusion, restriction or preference and, in the context of the facts to which the applicant referred in her evidence, the expressions were not based on her race, colour, descent or national or ethnic origin. Neither did they have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. They were, it seems to me, nothing more than what is often referred to as "body language" which, however discomforting for the applicant, did not attract the operation of s 9(1).
139 The applicant also alleges that she was blamed for the children's unruly behaviour. In her affidavit of 13 October 2006, the applicant said that she was blamed for the children's behaviour, and was told that she was the reason for their bad behaviour. Viva voce, the applicant's evidence was as follows:
Yet, at the same time, I was blamed, like even in writing, I was blamed by Ms [McEwan] for the unruly children behaviour. I was told that I speak without authority, that I speak too softly, that the children react to me. She was … telling me and putting me down, telling me that I was the cause of children unsettling behaviour. The children reacted to me, there was something wrong with me. There was something wrong with me that the children behave unruly, that were unsettled ….
Having given evidence on the subject of Ms Matthew's treatment of the children in a particular respect, the applicant continued:
[I]t was nothing to do with the new teacher, and obviously had nothing to do with me because I … wasn't there at the time, I was on my hourly break and I was again intimidated, put under the pressure that I am causing some kind of havoc in this kinder, I'm personally responsible for some misbehaviour of the student, and I was told basically that I'm not reinforcing the rule and I'm inadequate as a person and as a teacher and that they react to me, and that's never happened in this kinder and isn't like that, so that's what's the very abusive in psychological term and damaging.
The applicant was not cross-examined on this evidence; nor, save possibly for a reference to two specific incidents, did the respondents call any evidence of their own on the subject. The first incident was the conversation between Ms McEwan and the applicant on the morning of 7 November 2005 to which I have referred in pars 37-38 above. The second incident was the conversation between Mr Sterjov and the applicant about shoes and socks to which I have referred in par 127 above. Neither incident involved the applicant being blamed for the children's unruly behaviour. Since the respondents did not, in their evidence, deny the applicant's evidentiary allegations of blame, I shall proceed on the basis that the applicant has made good those allegations but, because of the very general level at which they were expressed, it is difficult to get a real sense of the dynamics of the personal interactions, as it were, in the course of which the applicant was blamed as alleged. The difficulty with the allegations in the context of s 9(1) of the RD Act is that, on their face, the accusations had nothing to do with the applicant's race, colour, descent or national or ethnic origin. Rather, they were based on the makers' perceptions of the applicant's shortcomings in the area of handling children. I do not hold that there was substance in the accusations, but I am not justified in assuming that race etc was necessarily, or even most probably, the basis, or a basis, for making them.
140 In her affidavit of 13 October 2006, the applicant said that she was "told to remove dirt from the sandpit". In her evidence in court, the applicant went further and said that Mr Sterjov "would" blame her for the dirt in the sandpit, and "would" say that there was too much dirt in the sandpit and that the applicant was required to remove the dirt. Under cross-examination, however, it transpired that the applicant was speaking of a single occasion, that of the conversation between Mr Sterjov and herself about shoes and socks to which I have referred in par 127 above. She said that the conversation commenced with Mr Sterjov pointing out to her that there was too much dirt in the sandpit, after which his comments turned to the subject of shoes and socks. Mr Sterjov gave evidence of so much of the conversation as related to shoes and socks, but said nothing about dirt in the sandpit. He was not cross-examined about the matter. Clearly, this incident cannot be brought within the scope of s 9(1) of the RD Act. None of the requirements are satisfied. Mr Sterjov's comment, if made as alleged by the applicant, was based on the existence of dirt in the sandpit, and may well have implied blameworthiness on the part of the applicant. But it had nothing to do with the applicant's race, colour, descent or national or ethnic origin.
141 The applicant gave evidence that Mr Sterjov blamed her for the fact that the children threw a ball behind the fence. She was not certain whether this was the same occasion as that upon which Mr Sterjov spoke to her about shoes and socks. She was not cross-examined about Mr Sterjov's comment, and Mr Sterjov, for his part, gave no evidence about it. Taking the applicant's evidence at face value, as with the matter dealt with in the previous paragraph, the incident cannot be brought within the scope of s 9(1) of the RD Act. If the comment was made, it was made because the children had thrown a ball behind the fence, and Mr Sterjov held the applicant accountable for it. Whether it was right or wrong for him to have done so, the comment had nothing to do with the applicant's race, colour, descent or national or ethnic origin.
142 Dealing finally with the general allegation in (v), I do not accept that the applicant was oppressed, or that she was subjected to "constant criticisms". Her evidence was replete with non-specific accusations of oppression, bullying, etc of her by the respondents and Ms Matthew. Apart from the conversation regarding shoes and socks (and, possibly, dirt in the sandpit), Mr Sterjov did not speak to the applicant during the four days of her employment. Ms Sterjova spoke to the applicant only once. According to her evidence, she went into the kindergarten room on one occasion, asked the applicant whether everything was "OK", received no response, and left. Ms McEwan was present every day, but involved herself in the applicant's work and activities very little (the conversation on the first day, dealt with in pars 37-38 above and the children's birthday party, dealt with in par 149 below, being instances). The applicant did not put to Ms McEwan that there had been other occasions upon which she oppressed or bullied her, or the like. Ms Matthew is not a respondent but, treating her as someone for whose conduct La Kosta would be liable under s 18A of the RD Act, the likelihood that she would have oppressed, bullied or in any sense sought to make life difficult for the applicant is, in my estimate of the personalities involved, negligible. Save for the matters dealt with elsewhere in these reasons, no occasion upon which she was alleged to have done so was put to her when under cross-examination by the applicant.
143 Turning to (vi), I have dealt with the requirement that the applicant obtain a letter of equivalence from Early Childhood Australia in pars 24-25 above. That requirement was not a distinction, exclusion, restriction or preference, and it was not based on the applicant's race, colour, descent or national or ethnic origin. It was a purely operational requirement of La Kosta. The applicant did give evidence that, on the third day of her employment, she requested a day off so that she might go the Association's offices and obtain such a letter. She said that she was refused the day off. She was not cross-examined on the subject, and the respondents led no evidence about it. Accepting that the applicant did seek, and was refused, a day off work, there is still nothing in the evidence that would sustain the allegation that the refusal was based on her race, colour, descent or national or ethnic origin.
144 It is true that Ms McEwan did not introduce the applicant to her work on 3 November 2005 (the occasion of the second interview) as alleged by the applicant in (vii), but I consider that it would be putting it too high to say that she "refused" to do so. She was under no obligation to do so. It was not then convenient for her to do so. As set out elsewhere in these reasons, Ms McEwan did not introduce the applicant to her work on that day because she had commitments with parents. It had nothing whatsoever to do with the applicant's race, colour, descent or national or ethnic origin. As to the morning of 7 November 2005 (the applicant's first day at work), Ms McEwan said that she spent between about half an hour and an hour giving the applicant an orientation, which involved showing the applicant around the centre and informing her of various procedures and practices used there. Ms McEwan completed a document headed "Staff Induction Checklist", on which were listed 33 items, alongside 20 of which the endorsement "7/11" had been written in Ms McEwan's hand. Ms McEwan said that the document accurately recorded what had been done by her in the way of orientation for the applicant on the morning of 7 November 2005. Of the other 13 items, one was of no application to an employee in the position of the applicant, two were noted as having been covered "during interview", two were endorsed "for later date", two were endorsed "for emergency training" and six, either by the terms of the endorsement or by the absence of an endorsement, were apparently not dealt with at all. The applicant said that the document was a fabrication by Ms McEwan. I reject that allegation. I accept Ms McEwan's evidence that the document states generally the matters covered by an induction which she gave to the applicant on the morning of 7 November 2005. The applicant's allegation that Ms McEwan refused to introduce her to work on that morning has not been made good.
145 As alleged by the applicant in (viii), Ms Matthew did refer to the applicant as "teacher". However, I do not accept that this form of address was "offensive". Ms Matthew said that she used it as a mark of respect, since in Sudan "those who educate are called teachers". I appreciate that the applicant may well have found the form of address irritating, but there is no evidence that she told Ms Matthew to desist. However that may be, there is no way that this otherwise perfectly innocent circumstance can be brought within the terms of s 9(1) of the RD Act.
146 In (ix), the applicant alleges that Ms Matthew hid the resources, and would not allow her to use them freely. The "resources" to which the applicant refers were the toys, papers and other materials that were used at the centre in the various activities undertaken by children in the kindergarten room. Apparently the room had a series of open shelves on which these resources were placed, and from which they could be retrieved by the applicant for use with the children from time to time. In her affidavit of 13 October 2006 and in her evidence in chief, the applicant alleged that Ms Matthew had "hidden" the resources from her, as though it were a wilful act directed at the applicant specifically. Under cross-examination, however, the applicant accepted that Ms Matthew was very particular about cleanliness, and that that had much to do with the absence of resources on the shelves. She said:
On the last two days the shelf in the kinder … became more empty and more empty and empty, to the extent that they were nice and clean and there was no toys on the shelves and the children have nothing to play. And Esther was pedantic, she likes everything clean, intact, and everything. She wouldn't allow for a mess or things on the floor or too many things and really distracted her. She became very angry and she was just sort of tidy, tidy, tidy person, very perfectionist in the sense of tidiness in the room. Which I kind of tried to accommodate and respect, but at the same time you can't - children have to play and have a little bit of mess around. So she just - I don't know what she done with them, she just removed them and locked them somewhere or hid them in the boxes, so the shelf were empty … and it was only not much left on those shelf and I and the children used the stuff from the shelf, just whatever was on the shelf and there was not much there. There could be some hundred of toys and everything in the store room, or there and there, but they were not where they should be. They were not available to use basically, they were somewhere in the boxes or somewhere and I thought she just put them away and cleared the shelves, … there was empty shelves. You know, just empty, like I would clean out this.
Ms Matthew denied that she hid any resources from the applicant. She said that she did remove the resources from the shelves, but did so only for the purpose of cleaning the shelves, after which she put the resources back. The difference between Ms Matthew and the applicant, therefore, is whether the former withheld resources from the latter with a purpose which was wilful or malevolent - in effect to make life difficult for the applicant. I hold that she did not. I think it likely that the applicant was frustrated occasionally by the absence of resources, but that that absence was of a temporary nature, occasioned by the need for Ms Matthew to clean the shelves. To the extent that Ms Matthew removed resources from the shelves, the "basis" for her doing so was the need to clean, not the applicant's race, colour, descent or national or ethnic origin. The whole business of absence of resources is completely outside the scope of s 9(1) of the RD Act.
147 As to (x), the only specific occasion of being reprimanded or intimidated by Mr Sterjov mentioned by the applicant in her evidence was the conversation to which I have referred above about shoes and socks, and possibly also dirt in the sandpit. I have dealt with that matter elsewhere. At no time did Mr Sterjov intimidate or reprimand the applicant in front of the children. What he said to her, he said because of the subject-matter under discussion. It had nothing to do with her race, colour, descent or national or ethnic origin.
148 The Aileen to whom the applicant refers in (xi) was Ms Brown. In her affidavit affirmed on 10 February 2006, the applicant said that Ms Brown brought some hyperactive children into her (the applicant's) room from the 3 year-old's room. She said this was done without reasons or explanation, and without introducing the children to her. She referred to some unwanted behaviour in which one of these children engaged, and said that he required one-to-one care all the time. The applicant gave viva voce evidence substantially to the same effect, adding that Ms Brown's act was deliberate, wilful and malicious; and calculated to make her (the applicant's) job harder. The respondents appear to have ignored this evidence. The applicant was not cross-examined about it, and no other evidence was led on the subject. As pointed out elsewhere in these reasons, Ms Brown was, it seems, unavailable to the respondents as a witness, so I do not infer that any evidence she might have given on the subject would not have assisted the respondents' case. However, the fact is that I am left only with the applicant's evidence on this allegation. Although no objection was taken to the applicant stating not only what Ms Brown did, but also what were her motives for doing it, the applicant gave no evidence from which I could be satisfied that what she said about Ms Brown's motives was anything other than supposition on her part. She said nothing about her relationship with Ms Brown, or about the context generally, which would support the inference that Ms Brown might have wanted to make life difficult for her. All I have is the isolated and, as the applicant pointed out, unexplained circumstance that Ms Brown left some children with the applicant for no apparent reason, and that at least one of them was hyperactive and occupied himself in unwanted activities. There is nothing in this that would attract the operation of s 9(1) of the RD Act. On this evidence, I could not find that the basis of Ms Brown's act was the applicant's race, colour, descent or national or ethnic origin.
149 On 10 November 2005, what was to be the applicant's last day at work, one of the children in the kindergarten had a birthday. In (xii), the applicant refers to a "party" that was held to mark this occasion, attended by Ms McEwan and a parent of the child. In her affidavit of 10 February 2005, the applicant said that Ms McEwan told her, in an offensive manner and in front of the children and the parent, to leave the room, and to return when the party was over. The applicant replied that she would like to stay. She said she did stay, but was bossed around and made to feel useless and inadequate by Ms McEwan and Ms Matthew. Ms McEwan denied these allegations. She said that the party was at about the time that the staff normally had their afternoon tea break. Her evidence continued:
I actually said to the applicant, "You know, we've got a party, the party will go for a long time, you know, I'd like you - it would be nice if you go and have a cup of coffee, cup of tea for 10 minutes because you deserve it, and then, you know, we'll come back to the party," and she did. I cut her a piece of cake and, you know, we had a conversation and I thought everything was wow. I didn't think anything else, I thought it was just a normal lovely birthday part and everyone was enjoying themselves.
This version of the event had been put to the applicant under cross-examination, and she denied that she had been merely invited to absent herself for the purpose of having afternoon tea. She maintained that Ms McEwan's act was obnoxious and offensive, and conveyed the impression that she (the applicant) was not wanted. I think that the difference between Ms McEwan and the applicant was most likely one of impression. The applicant was in her first week of employment, and was probably sensitive to the implications in everything going on around her. What, according to my findings, had happened that morning (as to which see pars 39-42 above) probably put the applicant in no mood to expect kindness from Ms Matthew and, by extension, from Ms McEwan. On the other hand, I think it probable that Ms McEwan and Ms Matthew felt more at home with the children and the parent from longer association than the applicant had enjoyed. It may be that Ms McEwan was offhand in her suggestion that the applicant absent herself. I think it unlikely that Ms McEwan actually addressed the applicant in the carefully constructed, rather delicate, terms set out above, although I accept that she had in mind that the applicant should use the opportunity to take her afternoon tea. However all these differences in emphasis may be, it is sufficient for present purposes to say that, at most, Ms McEwan's attitude could be criticised as being insensitive to the applicant's feelings. I find that it had nothing to do with the applicant's race, colour, descent or national or ethnic origin.
150 In (xiv), the applicant refers to the respondents' Defence, including the Further Amended Defence on which they went to trial. Such matters are not the province of s 9(1) of the RD Act.
151 In (xv), the applicant makes an allegation against an institution which is not a party to this proceeding. I need say nothing further about it.
152 I turn next to (xvi), in which the applicant refers to a freedom of information request which she made of the respondents by correspondence dated 15 November 2005. She wrote separately to Mr Sterjov and Ms Sterjova on the one hand, and to Ms McEwan on the other hand, in the following terms:
I request release of all information and documents collected and obtained by you during the course of my application for employment & a casual employment at La Costa Kinder in November 2005.
Those must include information referred to by the Centre owner, Costa that lead directly to the abrupt & illegal termination of my employment contract by you on 10/11/05.
According to the Centre owner you have obtained information about me which information were the reasons for termination of my employment contract on 10/11/05.
A complete and full disclosure of those information & their sources is requested. Those information must include also all verbal information obtained by you and any hand written notes made by you in relation to me and any other documents kept on my file that you or the owners have produced.
All those information & documents to be posted on my home address provided below.
Your urgent attention to this matter & cooperation would be appreciated.
The applicant gave evidence that she hand-delivered the request to the centre. Beyond that, the evidence became unsatisfactory. The applicant said that she had not received a response to the request. She was not cross-examined about the subject at all. The respondents said nothing about it in their evidence in chief. When Mr Sterjov was under cross-examination, I asked him whether he had responded to the applicant's request. He said that he did not recall. He added that he did not have any documents of the kind referred to in the request: he interpreted the request addressed to him as a request only for documents that were provided to him by Ms McEwan about the applicant's past, and Ms McEwan had provided no such documents to him. However, he added that he had sent some documents back to the applicant, namely, the ones that she herself provided at the first interview (as I have mentioned in par 24 above). When I drew his attention to so much of the request as related to information that led to the termination of the applicant's employment on 10 November 2005, Mr Sterjov said that he could not recall whether he had sent those documents to the applicant. The applicant then asked Mr Sterjov if he had attended VCAT for a hearing (a subject which had not previously been broached in the evidence at all). He said that he had, but that the applicant herself had not attended, so the hearing did not proceed. Mr Sterjov said that he left the documents at VCAT in a yellow envelope. I was left with a sense of unease about Mr Sterjov's evidence about the applicant's request, and how he dealt with it. At times he said he did not recall how he responded to the request, yet he admitted that he had sent some documents back to the applicant, and that he had provided some to VCAT. Ms McEwan said (under cross-examination) that she had never seen the applicant's letter addressed to her. Mr Sterjov mentioned to her that the applicant had made a request for documents, but otherwise she remained uninvolved. Apparently between herself and Mr Sterjov, the latter retained the correspondence from the applicant (including the letter addressed to the former) and dealt with the request from that point forward. In the result, the respondents' evidence has not adequately answered that of the applicant that her request was effectively refused as she alleges. I so find. I hold the refusal to be an "act" for the purposes of s 9(1) of the RD Act. However, assuming the refusal involved a "distinction" (etc) for the purposes of s 9(1), I am not satisfied that it was based on the applicant's race, colour, descent, or national or ethnic origin. The facts do not permit me to make a positive finding about basis, but the context definitely does not indicate any one or more of those statutory bases. Although the matter was not argued before me, I would add that I have considerable doubt as to whether the right to access to a document is such as would fall within art 5 of the convention or otherwise be properly regarded as a "human right or fundamental freedom in the political, economic, social, cultural or any other field of public life" (the applicant's legal rights under the FOI Act itself, of course, being another matter altogether). In the result, I do not uphold this allegation under s 9(1) of the RD Act.
153 The allegation in (xvii) is drawn from the third reason in Ms McEwan's "reasons for termination" document, with which I have dealt in another context in pars 84-88 above. The applicant's point here is not that she was dismissed because of her race etc, but that Ms McEwan made a statement in the terms alleged. I make no finding as to whether, but I shall assume in the applicant's favour that, the statement was an "act" for the purposes of s 9(1), that it involved a preference, and that it had the effect impairing the applicant's exercise of the right to work (in the sense that it led to the termination of her employment). I would hold, however, that the statement was not unlawful within the meaning of s 9(1). In its terms, the statement was based on what Ms McEwan described as the applicant's "philosophy". In par 88 above, I have attempted to identify what Ms McEwan meant by that term. However inapt the term may have been in the circumstances, I am satisfied that Ms McEwan had in mind things which had nothing to do with the applicant's race, colour, descent or national or ethnic origin.
154 As to (xix), the applicant gave evidence that, on about the second day of her employment at the centre, she was approached during her lunch break by Ms Sterjova and Ms McEwan. Ms McEwan made comments to the effect that the applicant spoke softly and without authority, and that another female employee of Polish origin had "the same problem". When the applicant was cross-examined about the conversation she had with Ms McEwan on the first morning of her employment, she raised again her allegation that Ms McEwan accused her of speaking softly, and without authority. Ms McEwan denied that she said such a thing to the applicant, and Ms Sterjova said that she had never heard Ms McEwan say such a thing to the applicant. I think the conversation to which the applicant is referring in this allegation is the one with Ms McEwan on the first day to which I have referred. The gist of that conversation was as I have set out in pars 37-38 above. I do not find, but I allow for the possibility, that Ms McEwan may have said something along the lines alleged by the applicant, even to the extent of referring to another Polish employee. However, on no view did any such comment have the purpose or effect of nullifying or impairing, for the applicant, the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. If made, the comment was made in the course of, and was consistent with the general thread of, Ms McEwan's contributions in a conversation which were wholly benign; indeed, those contributions were calculated to be helpful and positive to the applicant, on the first day of her experience with the children in the kindergarten. They led to no adverse consequences of any kind for the applicant. The comment, if made, was not unlawful under s 9(1) of the RD Act.
155 As to the applicant's allegation in (xx) that the respondents refused to recognise her professional qualifications, I have dealt with the matter in pars 24-25 above. The respondents did not refuse to recognise the applicant's qualifications. In the interviews, Mr Sterjov and Ms Sterjova recognised those qualifications: it was just that, in order to be paid as a kindergarten teacher, it was necessary for the applicant to obtain a letter of equivalence as I have explained. That requirement was not of their making - it arose from the circumstance that the position for which the applicant applied was funded by Government. That the applicant might have secured the position of, and been paid as, a kindergarten teacher upon the production of such a letter necessarily implied that her existing qualifications were recognised. She was not treated as an applicant without any qualifications. Thus I would hold that the allegation of fact which the applicant makes has not been made good. I would also add that there is nothing in the evidence that would sustain the allegation that the approach which Mr Sterjov and Ms Sterjova took to the applicant's qualifications was in the least related to her race, colour, descent or national or ethnic origin. In dealing with this allegation in this way, I do not treat the second sentence as seeking to raise independent accusations against the respondents: if it is, the applicant has made no submission such as would give it any significance or context, or as would relate any particular evidence to it.
156 The allegation in (xxi) relates to the process of inspection of documents discovered by the respondents in this proceeding. The applicant's concerns in relevant respects were raised by her at an interlocutory hearing, and dealt with then. The allegation has nothing to do with the substance of the applicant's case against the respondents.
157 The allegations in (xxii), (xxiii) and (xxiv) are likewise concerned with the conduct of this proceeding, and are irrelevant to the applicant's substantive case.
158 The allegation in (xxv) is not one of an act for the purposes of s 9(1) of the RD Act.
159 As to (xxvi), I have dealt with the matter of cleaning in par 128 above. The applicant was required to carry out no more cleaning than was the obligation of other staff members at the centre. That there was such a requirement had nothing to do with her race, colour, descent or national or ethnic origin.
160 The allegation in (xxvii) is, of course, at the core of the applicant's case under s 170CK of the WR Act. Although the applicant has made no allegation under s 15(1)(c) of the RD Act that she was dismissed from her employment by reason of her race etc, the only "severe punishment" to which she could be referring in this allegation is her dismissal on the afternoon of 10 November 2005. It will be clear from my earlier reasons herein that the applicant was not punished "for asking … [Ms Matthew] why she left [the] room for a prolonged period of time without making [the applicant] aware of that". I have also found, in a statutory environment in which La Kosta had the burden of proof, that the applicant was not dismissed because of her national extraction. This effectively amounts to a finding for the purposes of s 9(1) of the RD Act that La Kosta's act constituted by the termination of the applicant's employment was not done by reason of her national origin. Although the finding was necessarily (because of the statutory provisions involved) confined to the reasons of La Kosta, it will be apparent that a like finding should be made in the case of the individual respondents, to the extent that they participated in the events which are relevant to this allegation.
161 Dealing with the other reasons which make an act unlawful under s 9(1) of the RD Act - race, colour, descent or ethnic origin - I find that the applicant's circumstances in none of those respects constituted a reason - either alone or in combination with anything else - for her dismissal. The applicant made no submission on any of these elements of s 9(1), other than that she was Polish and spoke English with an accent. There is no evidence about the applicant's "race". There was no suggestion, for example, that her race differed from that of Mr Sterjov or from that of Ms McEwan. As to colour, the applicant is a white-skinned person of European appearance, as are Mr Sterjov, Ms Sterjova and Ms McEwan. The applicant made no submission about colour being the, or a, basis for her dismissal. The only thing the applicant said about her "descent" was that she was Polish (ie her national extraction). Neither did she made any point about, or give any evidence about, her ethnic origin, save again for reliance upon her Polish national origin. In general, the factual basis for each of the reasons for dismissal alleged by the applicant, other than the fact that she was Polish and spoke with an accent, was neither the subject of any evidence nor dealt with by the applicant in her submissions.
162 Moreover, and importantly, it is quite clear why the applicant was dismissed. I have dealt with the subject earlier in these reasons. The applicant was dismissed for reasons which had nothing to do with circumstances of a kind which are picked up by s 9(1) of the RD Act. There is no substance in the applicant's allegation that the "severe punishment" which she suffered on 10 November 2005 was inflicted in breach of that subsection.
163 The applicant gave no evidence that any of the respondents had ever "contrasted" - in the sense of saying something which involved or implied a contrast between - her race and the race of Ms Matthew, as alleged in (xxviii). Ms McEwan denied that she had ever done so. As became clear under her cross-examination, the applicant's point here, rather, was that Ms McEwan acted in a way, and said a number of things, which implied a contrast, or the making of a distinction, between the applicant and Ms Matthew as individuals. The applicant said that, at the meeting at which she was dismissed, Ms McEwan spoke well of Ms Matthew, referred to her sensitivity, and said that she would cry if she were late for work. Ms McEwan believed Ms Matthew's version of events in relation to the incident on the afternoon of 10 November 2005, and disbelieved the applicant. The applicant surmised from this that Ms McEwan was silently basing her distinctions upon race. There was, and is, no foundation for any such surmise. Even accepting the applicant's evidence of what Ms McEwan actually said, there was nothing to connect her statements with the applicant's race or, for that matter, Ms Matthew's. I think it very likely that Ms McEwan held Ms Matthew in high regard, and trusted her. If Ms McEwan did speak well of Ms Matthew, and intimate that she would be disposed to accept Ms Matthew's word in preference to that of the applicant, I can think of no reason why Ms McEwan would not have based her judgment wholly upon her assessment of the individuals concerned, as individuals. Thus I do not accept that anything that Ms McEwan said implied a contrast between the race of the applicant and that of Ms Matthew.
164 The applicant sought to sustain the allegation in (xxviii) also by reference to what she said was a statement made by Ms Sterjova at one of the interviews. During cross-examination, the applicant said that Ms Sterjova had mentioned that there would be someone from Sudan, or from Africa, working in the same room, and had asked her (the applicant) whether she had a problem with that. Ms Sterjova said nothing about the matter in her evidence in chief, but was asked in cross-examination whether she remembered asking the applicant whether she minded working with a person from Sudan. Ms Sterjova replied in the negative, which I interpreted, from the way in which the response was given, as a denial of having asked such a question. I do not find, but I assume in favour of the applicant, that the matter was raised as she alleges. Manifestly, the enquiry said to have been made by Ms Sterjova would not have involved a "contrast" as alleged by the applicant. Neither would it have had the purpose or effect of nullifying or impairing, for the applicant, the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. Indeed, as put by the applicant, the enquiry seemed to have the purpose of facilitating the applicant's employment by La Kosta. The matter would not have involved conduct of a kind proscribed by s 9(1) of the RD Act.
165 The allegation in (xxix) is so generally expressed as to make it impossible to consider it separately from the other, more discrete, matters alleged by the applicant.
166 As to (xxx), I have dealt with the applicant's evidence as to threats by Mr Sterjov in par 131 above. For the purposes of s 9(1), again I shall decide the matter not by resolving the evidentiary conflict between the applicant and Mr Sterjov, but by holding that there was nothing in the evidence which would sustain the proposition that, if Mr Sterjov did make the "threats" alleged, the basis for him doing so was the applicant's race, colour, descent or national or ethnic origin. Indeed, I consider it somewhat more likely that he would have told the applicant not to come near the centre because of the events of the afternoon of 10 November 2005 and the morning of 11 November 2005. All of this is hypothetical, in a sense, since I have not found that anything was in fact said by Mr Sterjov such as the applicant alleges. However, one way or the other, the allegation cannot be upheld under s 9(1) of the RD Act.
167 There was no admissible evidence which related to the allegations in (xxxi) or (xxxii).
168 As to (xxxiii), I have dealt with the applicant's allegation that Ms Matthew bullied her or bossed (or "ordered") her around in par 128 above. For the reasons which I gave there, the like allegation under s 9(1) of the RD Act must also be rejected. Here the applicant also alleges that Ms Matthew prohibited her from using "multiple resources". She gave evidence that Ms Matthew took all the equipment away; and that she locked away the resources, telling her that the children should have only one resource at a time. As I have found above in connection with (ix), Ms Matthew did not hide any resources from the applicant, or lock them away so the applicant could not have them. Neither did she "prohibit" the applicant from using multiple resources. As to the closing words of this allegation, there was no evidence of any particular occasion on which Ms Matthew spoke to the applicant with hostility. Generally, I would not hold that the applicant has established the underlying factual parts of this allegation, such as to call for any consideration of basis for the purposes of s 9(1) of the RD Act.
169 Clearly the allegation in (xxxiv) is irrelevant to any cause of action which the applicant might have under s 9(1) of the RD Act. For those purposes, it would be beside the point whether the way the applicant was treated at the centre lined up with whatever occurred in her "last employment".
170 I do not understand the allegation in (xxxv) to be raising some discrete aspect of the respondents' conduct towards the applicant. Rather, it seems to be concerned with a wider sphere of responsibility, as it were. I have addressed the applicant's allegations under s 9(1) of the RD Act as though directed at the respondents. I do not think that this allegation advances the applicant's case to any extent.
171 For the above reasons, I propose to dismiss the applicant's claims under s 9(1) of the RD Act.