Victorian Civil and Administrative Tribunal|2000-11-30

Candan v Holden Ltd & Ors [2000] VCAT 2300 (30 November 2000)

CATCHWORDS: Anti-Discrimination- Employment - Discrimination on the basis of Sex and Race- Sexual Harassment Victimisation- Working Environment - Indirect Discrimination

Equal Opportunity Act ss. 4, 17, 18, 20, 21, 34, 35

Equal Opportunity Act 1995 ss. 6,(i), (k), 7, 8, 14, 76, 85, 86, 96, 97, 98, 99, 102, 103, 217, 218

DECISION: The Complaint is upheld in part. The complaint in respect of sexual harassment and victimisation is dismissed. The complaint in respect of sex and race discrimination is proved in part. Order the First and Fifth Respondents to pay the complainant $8,000.00

RESPONDENTS: Ms F. O'Brien, Solicitor, instructed by Freehill Hollingdale & Page

This complaint came on for hearing on 29, 30 November 1999, 1, 2, 3, 6 and 8 December 1999 and 1 May 2000 and on hearing Mr R. Leshinsky, Counsel for the complainant and Ms F. O'Brien Solicitor for the respondents THIS TRIBUNAL DOES ORDER:

1. The first and fifth respondents pay to the complainant $8,000.00 as compensation for emotional distress, humiliation, and loss of dignity and self esteem suffered by the complainant in consequence of the acts of discrimination found by this Tribunal to have been committed by the fifth respondent for which the Tribunal finds the first respondent is vicariously liable.

2. The respondents are jointly and severally liable for the amount referred to in paragraph 1.

3. The amount referred to in paragraph 1 be paid on or before the expiration of 30 days from the date of this order.

4. The first and fifth respondents provide a written apology to the complainant for the discriminatory conduct, on such terms as may be agreed by the parties within 30 days of this order.

5. Any application on the question of costs must be filed and served within 14 days from the date of this order.

1. The process line in the machine factory at Holden is dominated by the noise and activity of giant machines and the men and women who operate them. The complainant ("Ms. Candan") has worked in this environment now since 14 February, 1990. Over that period she alleges she has been harassed, discriminated against and victimised by various co-workers and by Holden Ltd. ("Holden") She says she has been subjected to a culture, pattern and practice of work which allows unlawful discrimination to flourish.

2. The complainant's claim is extensive. It runs to 66 pages and directly alleges discriminatory conduct against four employees of Holden in addition to the company. Many other Holden employees are implicated. The allegations address many distinct instances of discrimination arising under the Equal Opportunity Act 1984 and the Equal Opportunity Act 1995 and raise many additional general claims concerning training opportunities, preferred working hours and a working environment said to be hostile to Ms. Candan. The hostility is said to exist because of her sex and Turkish ethnicity and because she made a complaint of sexual harassment against one of her co-workers in 1993.

3. On 27 June, 1993 and 20 September, 1994 Ms. Candan lodged complaints of sexual harassment, discrimination and victimisation with the Commissioner for Equal Opportunity and Equal Opportunity Commission respectively under the Equal Opportunity Act 1984 ("the 1984 Act"). A further complaint was lodged with the Commission in June, 1998 alleging sexual and racial discrimination and sexual harassment under the Equal Opportunity Act 1995 ("the 1995 Act").

4. It was made clear to the Tribunal at the commencement of the hearing that all complaints were to be heard effectively as one now constituted by the complainant's Further Amended Particulars of Complaint dated 6 August, 1999 ("the Particulars"). The Complaint in its various forms has been the subject of numerous applications and directions.

6. Ms. Candan was born in Turkey and migrated to Australia. Her English is very basic and her work experience is limited to operating machines on the process line at Holden's engine factory since 14 February, 1990.

7. Advancement on the factory floor at Holden depends upon experience and familiarity with the machines on the line. Each employee should ideally have the opportunity to advance their skills and seniority through training in the use of the machines and completion of the recognised Vehicle Industry Certificate. It follows that if training is limited, advancement is necessarily retarded.

8. Ms. Candan was moved from Plant 16 to Plant 4 on 30 June, 1993 where she was the only woman on the production line. The move was precipitated by Ms. Candan three days earlier, making a complaint of sexual harassment against a co-worker in Plant 16 to the Commissioner for Equal Opportunity.

9. One of the tasks performed by Ms. Candan on the line in Plant 4 involved lifting engine parts known as "conrods" from a pallet and loading them onto a machine, the Diskus 865. There is no need to unload the Diskus 865 as a conveyor feeds the parts directly to the next machine although output should be monitored to ensure there is no backlog. The conrods are cast metal, weigh about 960g each and might be roughly described as shaped like a ring spanner with one enlarged end. The operator uses a metal pole to lift several conrods from the pallet onto the machine by inserting the pole through the large hole at the top of the conrods.

10. The Diskus 865 is the first machine on the conrod line in Plant 4. This means that if the Diskus 865 is inoperative, all other processes on the line are delayed. Ms. Candan was required to monitor the machine for jams and inspect the processed parts to ensure they met certain specifications. She was not required to effect repairs to the machine, this task was left to the leading hand, foreman or roving mechanics. If the machine jammed and she could not clear and reset it, she contacted the leading hand for assistance.

11. The claim is too detailed to repeat in these reasons. I propose to set out a summary of the allegations.

Mr. Butler - Particulars 13A, 13B, 13C, 23A, 26.1(C), (D), (N)

12. The second respondent, Mr Butler, worked with the complainant in Plant 10 as a leading hand. A complaint of sexual harassment made against Mr. Butler and Holden by Ms. Candan on 27 June, 1993 was resolved by agreement on 9 November, 1993 following conciliation at the Equal Opportunity Commission ("the original complaint"). Ms. Candan was assisted by a Union Representative at the Equal Opportunity Commission, Lucca Picci and retained solicitors Slater and Gordon to act on her behalf.

13. It is alleged Mr. Butler breached confidentiality in relation to the agreement of 9 November 1993. Such breach, it is said, and vicitmisation following on from the breach, is to be inferred from subsequent treatment of the complainant by Holden including moving her from her work station in Plant 10 to Plant 4 and by the fact Mr. Butler and others had gossiped about her.

14. Details of the original complaint were not before me. From the complainant's point of view the original complaint was the trigger for victimisation, sexual harassment, sex and race discrimination. She alleges Mr. Butler initiated vicious and damaging rumours, remarks and suggestions about her being a `loose woman' within the workplace which led to her being isolated and ostracized by her new workmates in Plant 4.

15. Mr Butler did not appear to give evidence at the hearing.

16. The fourth respondent Mr Bassini brokered the agreement of 9 November 1993 resolving the original complaint in his role as a Senior Conciliator formerly employed by the Commissioner for Equal Opportunity. Holden later employed Mr. Bassini as an Equal Opportunity Officer from 31 January 1994. The substance of the complaint against Mr. Bassini is that he did not and could not appear to treat Ms. Candan's various complaints of discrimination with impartiality as an employee of Holden given his former role as a Conciliator with the Equal Opportunity Commission. He was involved in an early attempt to secure afternoon shift work for Ms. Candan in Plant 4. In a conversation with Ms. Candan concerning these current proceedings, on 9 June, 1995 it is alleged he intimidated her and said "from now on this is war, your solicitors are using you."

17. Mr Bassini gave evidence and referred to the existence of posters depicting naked women in the Plant in January 1994 and his involvement in the removal of such posters.

Mr. Fazio - Particulars 26.1 (Q), (P), (O) - (AD), (W), 27, 28

18. The third respondent, Mr Fazio, was a foreman supervising the work of Ms. Candan on the line in Plant 4. It is alleged that throughout June to September, 1994 he was demanding and overbearing, continually and unreasonably insisting on improved production levels even after the end of the shift. Ms. Candan alleges she was singled out for this treatment by Mr. Fazio, she was bullied and harassed, unfairly criticised over sick leave and compelled by Mr. Fazio to work when injured or sick. She says he refused her permission to attend English classes and denied her access to training until she produced 3000 parts on her shift, despite machine breakdowns and other limitations of the process line. On one occasion Mr. Fazio is said to have made fun of the pronunciation of her name, laughing at her and denigrating her. On another occasion she alleges Mr. Fazio misled her about a meeting with a Personnel Officer, denying her an opportunity to report concerns about her treatment.

20. The fifth respondent, Mr Sali, was a leading hand in Plant 4. He was responsible for training Ms. Candan to use the Diskus 865 and other machines as required. It is alleged that on 10 May, 1994 he threw a conrod at Ms. Candan in anger, frustrated at her lack of understanding, from the top of the Diskus 865 at or near her, striking her foot and intimidating her.

21. Mr. Sali did not appear to give evidence at the hearing, although evidence of an apology he offered Ms. Candan and the throwing incident itself was uncontested. It appears Mr Sali subsequently refused to continue training Mrs Candan.

22. It is alleged Holden discriminated against and victimised Ms. Candan in four ways:

* First, by its unfair treatment of her after the original complaint against Mr. Butler in moving her from Plant 10 to Plant 4. This affected her knowledge of operation of new machines and so hindered her advancement;

* Second, by denying Ms. Candan an opportunity to work her preferred shift, afternoon shift in Plant 4 because of her relative inexperience with the machines;

* Third, by its failure to supervise her properly to ensure she had access to training opportunities and advancement;

* Fourth, by reason of its vicarious liability for the conduct of its employees.

23. Counsel for the respondents conceded at the outset that while denying the alleged facts and the conclusion that such facts amounted to discrimination or vicitmisation, Holden accepted that it was responsible for all of the actions of its employees, named and unnamed in the proceedings, including each of the second to fifth respondents.

24. The Tribunal heard evidence from a number of Holden employees and former employees including Ms. Candan, Michael Cassidy, formerly a Quality Control Assurance Supervisor, Peter Byham a machine operator, tool setter and inspector in Plant 4, Razan Tillem, machine operator, Ali Demirtas, machine operator, Bruce Anderson, formerly a consultant social worker to Holden. I heard medical evidence from Dr Russell Conway, general practitioner and Dr Helen Sutcliffe, occupational physician.

25. The respondents called Mr Bassini, Mr Picci, a union shop steward, Shane O'Neill, senior training consultant, Mr. Fazio, Malcolm Reeve, area manager and Dr Norman Lewis, psychiatrist.

26. Ms. Candan's claims give rise to a consideration of claims of discrimination on the ground of her sex and race and her claim that she was victimised by the respondents.

27. Ms. Candan's claims relate to a period between June 1993 and 1999 and therefore the provisions of the Equal Opportunity Act 1984 ("the 1984 Act") and the Equal Opportunity Act 1995 ("the 1995 Act") apply. By reason of s.218 of the 1995 Act, Ms. Candan must prove that the incidents occurring prior to 1 January, 1996 contravene both the 1984 Act and the 1995 Act.

28. Sex discrimination under the 1984 Act is defined as discrimination on the substantial ground of sex and race: section 4.

29. Section 17 sets out the criteria for discrimination. Subsection (1) provides as follows:

17(1) A person discriminates against another person in any circumstances relevant for the purposes of a provision of this Act on the ground of the status or by reason of the private life of the other person the first mentioned person treats the other person less favourably than the first mentioned person treats or would treat a person of a different status or with a different private life. "

30. Section 18 concerns discrimination by reason of making a complaint or taking action under the 1984 Act. It states:

"Discrimination by reason of act under this Act

18(1) A person discriminates against another person in any circumstances relevant for the purposes of a provision of this Act if the first mentioned person treats the other person less favourably than in those circumstances the first mentioned person treats or would treat other persons it does so by reason that the other person:

(a) has brought proceedings against the first mentioned person under this Act;

(b) has given evidence or information in connection with the proceedings brought by any person against the first mentioned person under this Act;

(c) has otherwise done anything under or by reference to this Act in relation to the first mentioned person or any other person; or

(d) has alleged that the first mentioned person or any other person has committed an Act which (whether or not the allegations so states) would amount to our contravention of this Act -

or by reason that the first mentioned person knows the other person intends to do any of those things or suspects the other person has done or intends to do any of them.

31. Section 18(1) does not apply by reason of subsection 18(2) if the allegation of unlawful conduct under s.18(1) was false and not made in good faith.

32. Sexual harassment and the unlawful actions of employees and supervisors are dealt with by ss.19 and 20. Section 21(2) provides:

(2) It is unlawful for an employer to discriminate against an employee on the ground of status or by reason of the private life of the employee

(b) by...subjecting the employee to any other detriment.

(1) Subject to subsection (2), where are person acts in contravention of this Act on behalf of another person either as his agent or employee, the person by whom the act is committed and the person on whose behalf the act is committed shall be jointly and severally liable under this Act in respect thereof."

34. Section 34(1) makes an employer and employee, or the principal and agent, jointly and severally liable in certain circumstances. Section 34(2) provides a defence to this liability. The effect of s34(1) is that, if one person acts on behalf of another and contravenes the Act, as employee or agent, the employer or principal is also liable (SEC v Equal Opportunity Board [1992] 4 VIR 37). Section 34(1) creates this joint and several liability in respect of each of the provisions of the Act dealing with unlawful discrimination, including s20(1) (SEC v Equal Opportunity Board, cited above; Box Hill College of TAFE v Fares [1992] EOC 92-464).

35. To succeed in relation to events occurring prior to 1 January, 1996 but not complained of until after that date, Ms. Candan must prove that she has been discriminated against on a ground prescribed by the 1984 Act and the 1995 Act.

36. The burden of proof is on Ms. Candan and she must prove her case on the balance of probabilities. It is well established, however, that in applying the standard of proof normally applicable in civil cases, the nature of the issue may influence the degree of satisfaction required. In other words, the seriousness of the allegations, the inherent likelihood of an occurrence of an event, and the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, the longstanding authority for this proposition, Dixon J. at page 361 says:

"When the law requires the proof of any fact, the Tribunal must find an actual persuasion of its occurrence or existence before it can be found."

37. To succeed Ms. Candan must prove on the balance of probabilities that as a Turkish person and/or as a woman she has received less favourable treatment by Holden and its employees; that such less favourable treatment was on the grounds of her race and or sex; and that the race and/or gender of Ms. Candan was a substantial reason for the less favourable treatment (section 4(7)).

38. Although sexual harassment under the 1984 Act is also generally alleged, there are no specific allegations of sexual harassment. The original complaint of sexual harassment against Mr Butler is not before the Tribunal.

39. It is clear in Victoria than depriving an employee of quiet enjoyment of employment, and interference with such quiet enjoyment by harassment of the employee would amount to subjecting the employee to a detriment (R v Equal Opportunity Board ex part Burns [1985] VicRp 31; [1985] VR 317; Bebbington v Dove [1993] 5 VIR 28). If, by subjecting an employee to a detriment of this kind, the employer, on the ground of the sex of the employee, treated the employee less favourably than he or she would treat an employee of a different sex in similar circumstances, the employer commits an act of discrimination by virtue of the combined operation of s.17(1) and 21(2)(b) (Burns case and Bebbington's case cited above). The same conduct may contravene both s20(1) and ss17 and 21, although the criteria for each act of discrimination are different. Again, conduct may not amount to sexual harassment under s20(1) but may be discrimination against an employee on the ground of his or her sex by subjecting the employee to a detriment (for example, see Lowen v Ivanov [1988] EOC 92-169; Murphy v Colorific Lithographics Pty LTd & Anor [1996] 22 August, 1996, No. 30 of 1994).

40. Further, Ms. Candan complains that she has been discriminated against by Holden and other employees of Holden in breach of section 18 of the Act, generally described as victimisation. To succeed under section 18 Ms. Candan must show that Holden or its employees treated her less favourably in terms of the Act because she had brought proceedings against them (being the original complaint) under the Act or because she had alleged that Holden or its employees had committed acts which would amount to contraventions of the Act. Section 18 does not apply (that is, it is a defence to section 18) if the allegation made was false and not made in good faith.

41. Section 217 and 218 are the transitional provisions. Essentially, complaints lodged under the 1984 Act must continue to be dealt with under that Act. In respect of complaints made after the commencement of the 1995 Act on 1 January, 1996, allegations must fall within both Acts if they relate to events occurring prior to the commencement of the 1995 Act.

42. Under the 1995 Act, discrimination is prohibited on the basis of specified attributes and in specified areas of activity. Employment is one of these areas of activity. Section 6 makes sex and race attributes for the purposes of the Act. Section 7(1) defines discrimination as meaning direct or indirect discrimination based on an attribute. Section 8(1) relevantly provides that direct discrimination occurs if a person treats someone with an attribute less favourably that the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

43. The effect of s. 8(2) is that the attribute need not be the sole or dominant reason for the treatment, but must be a substantial reason for it and that an awareness of discrimination or less favourable treatment is irrelevant for purposes of considering whether or not direct discrimination has occurred.

44. Under s.9(1) indirect discrimination occurs if a person imposes a requirement, condition or practice that someone with an attribute does not or can not comply with, that a higher proportion of people without that attribute or with a different attribute do or can comply with and that is not reasonable. Section 14 is relevant to this case as it provides that an employer must not discriminate against an employee: "(d) by subjecting the employee to any other detriment".

45. A "detriment" can encompass any kind of disadvantage and includes by reference to s.4, "humiliation and denigration".

46. Section 96 and 97 concern the prohibition on victimisation. A person may not subject another person to a detriment if a substantial reason for doing so is the making of a complaint under the Act.

47. The effect of s.102 is that if a person in the course of employment contravenes Part 3 of the Act relating to discrimination then both that person, that person being an employee, and the person's employer will be taken to have contravened that provision.

48. It is also clear that if a person commits an act which if committed by an employer would be a contravention of Part 3 then again, both the employee and the employer are liable. Section 103 is a defence and evidence the employer took reasonable precautions must be proved by the respondent.

49. The complainant seeks relief by way of specific orders regarding job security, training and implementation of equal opportunity programs, compensation for loss of earnings and borrowings, general and aggravated damages and an apology from the first respondent.

50. Under s.46(2)(b) of the 1984 Act the Tribunal may order a person to pay `such damages as it thinks fit to compensate the ...person for any loss, damage or injury suffered by that person in consequence of the act of discrimination to which the complaint relates..' Such injury may include psychological and physical injury, distress and humiliation. Aggravated damages may be ordered where there is some unjustifiable or improper conduct which aggravates the harm, for example malicious persistence in the unlawful conduct.

51. Particulars of the Claim were wholly adopted by the complainant as comprising her evidence in chief. This course led to some difficulties given her limited comprehension of English and lack of familiarity with legal terminology. The Particulars of Claim are said to reproduce in large part extracts translated from her diary, written in Turkish. The translation is imprecise in some places and Ms. Candan's oral evidence was therefore inconsistent with the written component in some significant respects. The Particulars also plead matters of law incomprehensible to Ms. Candan.

52. It is convenient to discuss my findings of fact under headings adopted by the parties in submissions.

53. On 30 June 1993 Ms. Candan was transferred from Plant 10 to Plant 4 as a direct consequence of the original complaint. It appears that the move was intended to resolve the issues between Ms. Candan and Mr. Butler. Ms. Candan accepted the move at the time believing she would not be prejudiced by it.

54. The original complaint was resolved on 9 November, 1993. Ms Candan was represented by Solicitors and her union at the time of the resolution. It appears the transfer to Plant 4 was not an issue at the time.

55. Ms. Candan was on annual leave from 1 December, 1993 to 14 January, 1994. She returned to work but took sick leave from 26 February to 14 March after a car accident.

56. Early in 1994 the afternoon shift at Plant 4 was shut down. Ms. Candan was transferred to day shift in Plant 4, a move which she claimed inconvenienced her. No afternoon shift was available in Plant 4 until August 1994. When the afternoon shift was reintroduced in late 1994, places were offered to all workers in Plant 4.

57. The afternoon shift was essentially a complementary or `catch-up' shift, allowing production targets to be met each day by concentrating work on particular machines in the line.

58. On 6 June, 1994 Ms. Candan requested that she be placed on afternoon shift in Plant 4 and she was refused. The reasons offered by the first respondent for refusing to place her in afternoon shift were that the implementation of afternoon shift was to be undertaken in two groups progressively. Ms. Candan was not appropriate for selection in the first group of volunteers because she had less experience and skills in operating and tooling the machines in Plant 4 than other employees seeking placement on the afternoon shift. In other words, employees with greater experience and job versatility in the Plant were given priority to ensure a small number of people could operate all machines on the line. Only four people were needed for the conrod line, two for the cam shaft line. This was said to be necessary to meet the demands of production and ensure the most experienced operators were working in the afternoon when shift numbers were limited.

59. From June to August 1994 Ms. Candan attempted through various channels to secure a place on the afternoon shift. She felt her move to Plant 4 had compromised her chances of securing her preferred shift and this was an unfair and unforeseen consequence of making the original complaint.

60. Ms. Candan attended on Dr Conway, her general practitioner from March to July 1994 and advised him that work was "okay". There appears to have been no complaint of dissatisfaction prior to and during this time. On 2 August 1994 however, Ms. Candan told Dr Conway she was very distressed about Holden's refusal to transfer her to afternoon shift and was prescribed anti-depressant medication. At about this time she rang Mr. Bassini, "hysterical" about the refusal to transfer her. She took four days sick leave on 8 August 1994.

61. Holden attempted to some degree to satisfy her. Those employees selected for afternoon shift were asked to give up a place for Ms. Candan. No-one agreed to do so. The Union was involved. On 19 August 1994 Ms. Candan signed a document after being advised by Area Manager Malcolm Reeve that she would definitely be placed on afternoon shift at about the end of August with the second group to be placed on the shift. The document purports to record Holden's promise to transfer Ms. Candan to the afternoon shift and resolution of an undefined "dispute". It states:

"I, Satisiye Candan, understand that the AFMEU (Vehicle Division) and Holden's Engine Company have co-operated in finding an afternoon shift placement for me.

In return, I give my commitment to abide by the rules of the Company and to focus my energies on my work.

I understand that my (sic) dispute with the Company as has now been resolved to my satisfaction and do (sic) not require further attention."

62. The complainant was advised she would be part of the second group to implement the afternoon shift, on 22 August, 1994 although this was delayed for some weeks due to production difficulties.

63. On 25 August, 1994 Ms. Candan was offered an immediate start on afternoon shift in a new plant, Plant 10, in light of delays implementing the second group of afternoon shift at Plant 4, but she refused.

64. On 14 September 1994, when the second group of afternoon shift began at Plant 4, Ms. Candan went off work and did not return to work until 17 January 1995. Ms. Candan made a workers compensation claim in respect of this period which was refused on 10 November, 1994. She received social security payments from 11 October, 1994 to 18 January, 1995 totaling $3,122.28.

65. It appears that Ms. Candan's limited experience in operating the machines in Plant 4 in August 1994 was a direct consequence of the fact that Ms. Candan was moved into Plant 4 on 30 June, 1993. She perceived that it was therefore a consequence of her making the original complaint in that she missed out on her opportunity to secure the shift she preferred.

66. It remains unclear to me as to why Ms. Candan preferred the afternoon shift. She has not established that she suffered any loss of income as a result of being placed on the morning shift or that she thereby directly lost any training opportunities. She retained credits for her previous machine experience in Plant 16 and shortly after her move to Plant 4 was upgraded from N21 to N22 level. The reduced number of employees working afternoon shift sometimes meant the work was more onerous than day shift.

67. It appears the conduct of Mr. Sali may have contributed to or motivated Ms Candan's desire to be moved to another shift but she never identified this issue in asking to be allocated afternoon shift. She also felt lonely and isolated in Plant 4.

68. I am satisfied that Holden considered Ms Candan's request for afternoon shift according to its policies and internal requirements. She was not treated less favourably because of her race or gender in refusing to accede to her request to move to afternoon shift.

69. Indirectly, the fact of Ms. Candan's original complaint of sexual harassment under the Act meant she was ineligible for selection to the first group to commence afternoon shift. But this was not a reason for the move to Plant 4. It was reasonable in my view to require Ms Candan and all other employees to meet criteria in respect of experience and knowledge of the various machines before accepting their request for placement on afternoon shift.

70. Furthermore, Ms. Candan has not established that there was any detriment, financial or otherwise, associated with remaining on the day shift in the period August to 14 September, 2000.

Treatment in the workplace prior to November 1993

71. During the course of the hearing there was discussion in relation to incidents occurring prior to November 1993. Allegations appear at paragraph 26.1 of the Particulars. It was unclear as to whether these matters had been included in the agreement resolving the original complaint. The agreement was not before me and I understand a prior ruling of the Tribunal indicated that if such matters were to form part of the complaint then they should be amended in some form. However, the relevant paragraphs of the Particulars of Complaint have not been struck out and I must deal with them. I refer to paragraph 26.1(C), (F), (G), (H), (I), (J) and allegations against Mr. Vostri and Mr. Sukhon.

72. Ms Candan complained to Mr Vostri, her leading hand, that the day shift should stop leaving identification tags on material through the camshaft line, because she could see what they were, she was not `dumb'. She also complained about a sign left near her workstation about cigarette butts.

73. Apart from Ms. Candan's evidence, constituted by her Particulars of Complaint and augmented to some limited extent by oral evidence, there was very little evidence directed towards the complaints prior to November 1993. I have already referred to signs left on her workstation regarding cigarette butts and identifying materials.

74. In my view these were trivial matters and Ms Candan's assumption people were personally criticising her reflects poorly upon her judgment of the situation.

75. Ms. Candan found the move to Plant 4 to be isolating and had difficulty making new friends. She believes others considered her to be a troublemaker and assumed they were talking about her but has not offered any direct detailed evidence of discrimination or victimisation during this time other than speculation individuals were discussing her. Further, the relevant diary entries contradict her evidence in significant respects, for example the diary entries referring to being treated nicely by Mr Sukhon.

76. I am not satisfied any of these matters has been proven to the required standard by the complainant. Her evidence is based upon speculation and assumption and does not establish, on the balance of probabilities that the conduct complained of in fact occurred.

77. Ms. Candan was trained in the use of the Diskus 865 machine by Mr. Sali, the leading hand on her shift. Mr. Sali was regarded by many witnesses as being sharp and rough in his demeanor, tough on everybody. He was responsible for training Ms. Candan and other machinists. Mr. Reeve, area manager, said he was rough and arrogant with everyone, himself included and that he had spoken to Mr. Sali directing him to change his behaviour, to be more respectful of people.

78. On 10 May, 1994 Ms. Candan sought the help of Mr. Sali in response to a breakdown of the Diskus 865 machine. Mr. Sali climbed up on to the machine to enable him to reach in and free conrod parts which had become jammed within the body of the machine. He was on the machine standing above and to the side of Ms. Candan when in a moment of annoyance and frustration at her lack of familiarity with the machine he threw a conrod part towards her. The part was thrown with some degree of force reflecting his frustration and bounced off the floor near Ms. Candan's foot, hitting her on the shoe. Despite the respondent's assertion that Mr Sali treated others `roughly' I am satisfied that Mr. Sali treated Ms. Candan less favourably than another machine operator without the same status or attributes of her race and gender.

79. Ms. Candan was shocked and upset as a result of the conrod having been thrown towards her and began to cry. Workmates attempted to comfort her at the time.

80. The next day Ms. Candan made a complaint to the personnel officer, Joe Micalleff informing him of the incident and telling him she was too scared to go to work. She also asked Mr. Bassini to investigate the incident. Mr. Sali reported to Mr. Bassini that he had thrown down a tool when he was annoyed with Ms. Candan because she was not learning something that he had trained her to do many times.

81. On 12 May 1994 Ms. Candan was called to a meeting at the Equal Opportunity Office where a number of people including Mr. Bassini and Mr. Sali were present. Mr. Sali was asked to and did apologise to her in respect of his conduct. Ms. Candan did not accept that this was an appropriate outcome because Mr. Sali's behaviour had frightened her and because Mr. Sali's apology was disingenuous. She reported feeling depressed and shaky to Bruce Anderson, a social worker.

82. As a result of the assault by Mr. Sali, Ms. Candan's agitation and fright increased whenever she came into contact with Mr. Sali thereafter and even increased when she believed she might have to come into contact with him.

83. Ms. Candan explained her fears to social work personnel and the Equal Opportunity Officer. These discussions did not alleviate her fears in relation to her personal wellbeing at work. Another leading hand, Mr. Harry Alaterias, was nominated to train Mr. Candan in Mr. Sali's place after Mr. Sali refused to continue to train Ms. Candan.

84. I find that by his conduct Mr. Sali subjected Ms Candan to intimidation and treated her less favourably than he would have treated male employees or employees with a better command of English. It follows that this was an act of discrimination on the ground of her sex and race.

85. I note Counsel for Holden accept vicarious liability for the conduct of all respondents including Mr. Sali. Mr. Sali was a leading hand, responsible to train and supervise Ms. Candan in the operation of machines. Malcolm Reeve acknowledged that Holden were aware Mr. Sali's manner towards machine operators was inappropriate. In my view Holden failed to take reasonable precautions to prevent this incident. It follows that Holden are jointly liable for Mr. Sali's discriminatory conduct.

86. Mr Fazio was Ms. Candan's supervising foreman. His commitment to maximising production on the line in Plant 4 was no doubt encouraged by Holden.

87. Ms. Candan complains that from June, 1994 on many occasions Mr. Fazio stood over her at her workstation demanding she produce 3000 parts per shift. She says he told her she was useless and lazy. On the advice of Michael Cassidy, Area Manager, she began to record the number of parts she was producing. Mr. Fazio found her to be a reasonable worker, friendly with him until her request for transfer to afternoon shift was refused in August 1994 and her attention became focused on this issue.

88. It appears from the evidence and my own observation of the operation of the Diskus 865 machine on a view that the number of parts produced by the machine depends entirely upon the proper function of the machine. The operator cannot increase the speed of production. The only variable that may be influenced by the operator is the rate at which conrods are loaded onto the machine - many at one time by threading the end of a long rod through the large ring of the conrod, or fewer, according to the strength of the particular operator. If the operator fails to keep up an input of parts or monitor the machine to enable quick resetting the production will fall. The speed of the machine is predetermined and one cannot simply by operator efficiency improve the rate of production. The machine occasionally breaks down or is jammed temporarily and sometimes breaks down more seriously requiring tooling by roving mechanics. The down time of the Diskus 865 machine, as with any other machine on the line, affects the production of the entire line. If the breakdown of the machine was somehow being contributed to by inefficient or faulty operation of the operator, and there was no evidence to suggest this was the case, then Ms. Candan should have been trained to overcome these difficulties.

89. The Diskus 865 machine was certainly a critical link in the production of the entire conrod line. If the Diskus 865 was not producing 3000 parts per shift other machines and operators on the line could not meet production targets overall. It is reasonable to expect the operator of the Diskus 865, whomsoever that may be, be encouraged by supervisors to increase production targets.

90. I am satisfied Mr Fazio often stood at Ms. Candan's workstation while she worked, urging her on with demands to produce 3000 parts. I do not accept he singled her out by visiting her workstation more frequently than reasonably required.

91. Ms. Candan was distressed as a result of her perceived treatment by Mr Fazio and documented the fact in her diary and in the production schedule she began to compile to justify her performance.

92. On one occasion witnessed by Peter Byham, Mr. Fazio stood beside Ms. Candan as she operated the machine at the end of the shift. She presumed she was not allowed to leave during the period allocated for washing up until she had produced 3000 parts.

93. Ms. Candan's evidence in relation to Mr. Fazio was generally unimpressive. Her answers in cross-examination were inconsistent, for example, evidence as to the number of times she stayed back did not accord with her diary account that Mr. Fazio spoke politely, "came and went" and that she "thought if" she left early on one occasion she would have it taken out on her.

94. It is alleged but I do not accept that Mr. Fazio laughed at her and taunted Ms. Candan about her name in a manner which denigrated her Turkish race. Ms Candan makes no more than a passing reference to this without any detail of what was said and in what context.

95. Ms. Candan perceived Mr. Fazio as singling her out in staff meetings by making pointed comments about the function of her machine. Mr. Fazio denies signing her out. He says and I accept that he discussed all machines on the line in staff meetings in an effort to improve performance overall.

96. Ms Candan says on one occasion Mr. Fazio insisted she operate her machine, despite producing a doctor's certificate after cutting her left thumb. It appears however, that the medical certificate contained no work restrictions and that Ms. Candan was able to load the machine with one hand.

97. Further, Ms. Candan alleges Mr. Fazio deliberately misled her about a meeting with another employee, causing her to miss the meeting. I am not satisfied on the evidence that he misled her about meeting times, frustrating her attempts to complain about her treatment at his hands.

98. On one occasion, on 28 June, 1994 Mr. Fazio refused to allow her to attend an English class. Company policy provides that English classes should not be taken when production schedules do not permit because of shortages on the line. I accept this explanation on this occasion.

99. The complaints against Mr. Fazio have not been made out.

100. It is significant however, that Ms. Candan's expectations of unfair treatment with respect to Mr. Fazio, developed in June, 1994 shortly after the incident with Mr. Sali. She clearly believed her supervisors were against her despite efforts by some to support her.

101. In January 1994 Mr. Bassini was involved in an inspection of the factory looking for publicly displayed posters of semi-naked women. He described this task as a `risk management assessment' and decided that "Girly" posters present in the factory should be removed.

102. Throughout 1994 Mr. Bassini removed posters several times because they would "sneak back up". The removal of posters in 1994 had been controversial and employees undermined his early attempts from time to time. Mr Bassini took no further steps personally to inspect the factory after 1994.

103. Ms. Candan said such posters existed after 1994 but did not relate any single incident of having observed a poster or complained of one.

104. Mr. Reeve was involved in the removal of posters from tradesmen's toolboxes and the maintenance area. These posters depicting naked or semi-naked women were visible from time to time to machine operators approaching the maintenance area or seen on the inside doors of open toolboxes. Ms. Candan does not appear to have complained to any person in relation to the posters, at least until bringing this complaint. It appears Holden were aware of the existence of the posters in 1994 and attempted to remove them.

105. On 6 June 1995 a magazine was left on a common workstation next to a machine known as the Marposs.

106. The magazine was described by Ms. Candan as containing pornographic material including explicit pictures of sexual intercourse. She stated that the magazine had been left open at such a page, propped up on the workstation adjacent to the machine she was working on at the time. She was upset and believed it was left open at the particular page to harass and intimidate her.

107. Ms. Candan complained immediately to the foreman, Colin Davidson. Mr. Luca Picci, senior shop steward and area manager Malcolm Reeve were also informed. Ms. Candan handed the magazine to Mr. Reeve, open at the offending page. An investigation of the complainant's allegations in respect of the magazine conducted by Holden revealed that the magazine in question was an Australasian Post. It had been left on a rack of papers at a common workstation open at the crossword. The magazine was removed and a further examination of private areas in the production and maintenance areas was implemented to remove any further unacceptable material.

108. Ms. Candan states that she was chastised by some unidentified others at the plant as a result of her complaint in relation to the magazine with comments such as "fucking Turkish girl" which upset her. I am not satisfied the allegation of comments has been made out.

109. I am satisfied that Ms Candan saw an Australasian Post magazine at a common workstation open at the crossword. Her complaint is indicative that the magazine caused her some distress and compounded her feeling of being treated with less respect than her male co-workers. But I do not accept the magazine was pornographic, containing explicit photographs of sexual intercourse. Ms Candan has in her distress, leapt to this conclusion.

110. Holden's failure to remove the posters and prevent the presence of the magazine resulted in the imposition of a condition or requirement that Ms. Candan be subjected to seeing them in her working environment. She was offended by them and as such was unable to comply with the condition or requirement a male worker could comply with. As such, the exhibition of such posters and the magazine constitutes indirect discrimination. However, I am not satisfied that any damage flowed from this conduct.

111. Ms. Candan assets that she was compromised in her ability to secure her preferred shift in Plant 4 by reason of the fact that she was transferred to the Plant as a result of the original complaint in 1993. She asserts she could not meet the selection criteria for placement on the afternoon shift because she was not trained in the use of particular machines. She says the failure to train her continued compromising her prospects of advancement.

112. In order to achieve the, highest pay level, N31 qualification level, Ms. Candan was required to complete the Victorian Industry Certificate. This involved 200 hours on the job training and 200 hours off the job training, including an elective of 40 hours.

113. On 18 August 1993 Ms. Candan had been elevated upon the recommendation of her supervisor from N21 to N22. She completed 200 hours on the job training by the end of 1995. In order to be classified at the next level, N23, Ms Candan was required to complete off the job training. Ms. Candan commenced her off the job training in 1996. She completed 140 hours off the job training in core subjects in 1996 and needed to complete a further 60 hours of an elective or specialist module.

114. In 1997, approximately 6 months after completing her relevant core studies, the complainant had the opportunity to complete the "machine" elective necessary to complete her off the job training but did not do so. She complained that her preferred elective, "production line", was not available and opted initially not to undertake various parts of the off the job training.

115. Ms. Candan did eventually complete the machine elective in October, 1997.

116. Shane O'Neill and Malcolm Reeve gave evidence in relation to the requirements of the Vehicle Industry Certificate including the elective components. The elective available in 1997 and appropriate for Ms. Candan to complete was a 60 hour machining elective, consistent with her skills and duties. Mr O'Neill discussed the elective requirements and practical difficulties of scheduling classes with Ms. Candan. She completed the elective by 6 October, 1997. Regardless of when the elective is started, pay increases are backdated to the commencement of off the job training.

117. Ms. Candan complained that she was not offered a production line elective focusing on assembly skills. She says her previous experience in Plant 16 on the V6 production line meant the `assembly' elective was appropriate. However, Mr O'Neill indicated her machining experience from 1994 to 1997 in Plant 4 and her training, to that point, meant the machine elective was appropriate. Mr O'Neill stated that the reason for a delay in offering Ms. Candan a machining elective was that classes were scheduled when sufficient numbers were ready for elective training in a particular field. This may have set back Ms Candan's progress temporarily, but she does not appear to have been singled out or treated less favourably in this process. The elective was completed by Ms. Candan by 6 October, 1997.

118. I am not satisfied the allegations in relation to lack of training opportunities has been made out.

119. In about the middle of 1995 Mr Bassini asked Ms Candan to consider working with him on equal opportunity issues. These proceedings were, in their original form at least, on foot at the time. Mr. Bassini said to her at the time words to the effect of "be careful you are not being used" and "litigation is like war, there are only casualties, no winners". He wanted to hand her a letter asking for her assistance with equal opportunity issues in the workplace.

120. Ms Candan's misinterpreted these remarks, believing Mr Bassini was attempting to hand her documents relating to these proceedings. As I have noted, her command of English is poor. She might easily have confused Mr Bassini's remarks thinking he said "from now on this is war". She refused to accept the letter.

121. I am satisfied Mr Bassini initiated the conversation with the intention of resolving the dispute and did not threaten Ms Candan or denigrate her solicitors at any time.

122. In summary, I have found the acts of discrimination proved by Ms Candan are:

(1) against Mr. Sali, intimidating conduct in the throwing of the conrod part at her in frustration at her inability to learn to tool and reset the Diskus 865 machine;

i) material displayed in the workplace by way of posters and a magazine depicting naked or semi-naked women;

ii) vicarious liability for the conduct of Mr. Sali.

123. Ms Candan's response to Mr. Sali's conduct indicates that she suffered significant upset and anxiety over the incident. As a consequence she was afraid of further encounters with Mr. Sali, her leading hand and trainer and felt she had nowhere to turn for support. She did not accept his forced apology. The conduct deprived her of quiet enjoyment of employment in terms of her ongoing anxiety at work for a significant part of 1994, from at least 10 May to 14 September when she secured a place on the afternoon shift. She made no complaint of anxiety to her doctors until August 1994 when her concerns in relation to the afternoon shift came to a head.

124. In respect of the posters and magazine, I accept Ms. Candan was somewhat angry and upset at the appearance of the posters from time to time and at the magazine on one occasion at a common workstation, open at the crossword. Ms. Candan would have needed to examine the magazine closely to find offending material. I do not believe the posters or the magazine created significant ongoing distress for her except insofar as it compounded her feelings of ill treatment on real and imagined grounds.

125. The claim for damages for loss of income fails. There was no loss of income attributable to the acts of discrimination proven and this claim for damages fails.

126. In respect of the claim for emotional distress I note that the medical evidence of distress relates primarily to events occurring after the throwing incident on 10 May 1994. She reported to her doctors that things were okay until August 1994. She did suffer a significant degree of distress, humiliation and a loss of self-esteem. Her enjoyment of work suffered significantly. She began to perceive her supervisors as being `against her' despite their efforts and no doubt antagonised many people with her assumptions of unfair treatment. Although I have found her assumptions were not always justified, they do indicate the degree of her unhappiness and isolation at work after May, 1994. I consider her response to the posters and the crossword in the Post magazine to be indicative of such assumptions. Of itself, the posters and magazine were relatively inoffensive to her. Nevertheless, it signaled to her that the workplace was anti-woman, more specifically against Sahsiye Candan.

127. In assessing the appropriate quantum of damages it is necessary to consider the degree to which those damages have been contributed to by extraneous factors including her response to non-discriminatory conduct. It is also appropriate to consider whether the conduct continues to have a detrimental effect upon her. In my view it has lessened over the years.

128. In respect of all acts of discrimination proven, after consideration of the whole of the evidence, I consider that an award of $ 8,000.00 is appropriate in respect of the conrod throwing incident. No award is appropriate in respect of the magazines and posters.

129. An award of aggravated damages is not appropriate. I do not consider that the conduct of Mr. Sali or Holden was deliberate or malicious or that it persisted after her complaints.

130. I note Mr Sali was required to offer an apology, although this was not accepted by Ms Candan. In my view an apology is appropriate.

131. I am satisfied that Holden has implemented equal opportunity programs to educate senior employees of relevant issues. It has attempted, since at least 1994, to remove material from the workplace which might offend or embarrass. Material was tendered relating to various policies, educational material and programs at Holden over the years. Whilst the current status of these programs was not fully explored, I am satisfied senior officers of the company are aware of the need to educate employees at all levels of its factory operation in equal opportunity issues and do not intend to make orders in respect of training programs and the like.

132. I conclude that this complaint is substantiated to the extent of the act of discrimination that I found the first and fifth respondents committed.

133. The complainant has not succeeded in making out the allegations that there was at Holden a culture, pattern and practice of work, which allowed unlawful discrimination to flourish.

134. I award the complainant $8,000.00 damages to compensate her for emotional distress, humiliation and loss of dignity and self esteem suffered in consequence of the act of discrimination. This sum is payable jointly and severally by the first and fifth respondents.

135. I propose to order that any application in respect of costs should be filed with the Tribunal and served on the other party within 14 days of this order.

Candan v Holden Ltd & Ors [2000] VCAT 2300

At a glance

Court

Decision date

Catchwords

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Catchwords

Judgment (171 paragraphs)

Candan v Holden Ltd & Ors [2000] VCAT 2300 (30 November 2000)

Parties

Cases Cited (1)