Drummond v Telstra Corporation Limited

Drummond v Telstra Corporation Limited - [2008] VCAT 2630 - VCAT 2008 case summary — Zoe

[97]

I have not set out the full list of attributes enumerated in the Equal Opportunity Act, suffice to say that every person possesses some attributes as defined in the Act. Most people in one form or another possess most of the attributes. It is a frequent experience in this List that people who feel they have been unjustly dealt with whether in employment or other contexts identify what they see as unfair treatment and their possession of one or more attributes leaping to the allegation then that they have been the victims of direct discrimination.
If this mode of argument were acceptable every instance of unfair dismissal for instance would also be an instance of direct discrimination because every unjustly or allegedly unjustly dismissed employee possesses certain attributes. Logically no complaint of direct discrimination can be proven or be other than frivolous and lacking in substance, unless, to use the words of Section 8(2)(b) of the Act, the attribute is a 'substantial reason' for the detrimental treatment.
Here, the only evidence that what Mr Drummond alleges is detrimental or less favourable treatment of him had as a substantial reason for it, his status as an Australian is his identification of the ethnic diversity of the class of 12 of which he was a member. Every member of that class had some ethnic status and was a less favourable member of a particular race. If an Asian member of the group had been subjected to treatment, then he or she was the victim of racial discrimination according to Mr Drummond's reasoning.
During the course of the argument Mr Drummond asked rhetorically 'why is it that only Asian women are involved in cleaning up the rubbish at Caulfield Racecourse?' I asked him what his explanation for this phenomenon was. He said it was because 'Australian's don't like doing shitty jobs'. That response of course encapsulates a potential explanation for the ethnic make-up of the class of 12, namely that call centre employment is not particularly popular and recent arrivals in Australia who have to 'start at the bottom' are disproportionately represented amongst applicants to the substantial exclusion of native Australians. This is of course all speculative. The problem is that in identifying the ethnic make-up of his class, Mr Drummond can do no more than invite the Tribunal to engage in speculation. There is no substantive proof of any type that Mr Drummond was singled out for less favourable treatment by Telstra or by Kellys by reason of his race. Mr Dalton on behalf of Telstra was prepared to concede for the sake of the argument that reference to the missing attendance register would show the allegations against Mr Drummond to have been unfounded. A supervisor may treat an employee or a contract worker unfairly for a variety of reasons none of which may have anything to do with discrimination. For instance, the supervisor may simply be too lazy or too hasty to give proper consideration to a reasonable excuse or exculpation advanced by the employee. The supervisor may have been irritated or annoyed by some extraneous issue in his or her personal life. A supervisor may act without proper regard to appropriate process in disciplining or dismissing an employee because of a desire to save money or trouble either for himself/herself or a corporate employer. Again, this might be unfair but it is not discrimination.
Mr Drummond has stated an intention to call a variety of witnesses all of whom are one might think in the Telstra camp. I told him that if he called these individuals as witnesses he would have to accept their evidence. He would not be able for instance to say 'I put it to you that that is a lie'. He replied rather airily that he would have them declared hostile witnesses. The fact is that Mr Drummond has no idea what any of these people would say. The chances that they would give to non-leading questions answers implicating themselves in unlawful discrimination seems to be fairly remote. Moreover, there is nothing in the material placed before me which suggests there is the slightest likelihood that such evidence would be forthcoming assuming that they answered Mr Drummond's questions with utmost candour. It may well be that a full scale hearing of this proceeding would demonstrate that Mr Drummond has been unfairly treated; but that in itself is not enough to make out a case for racial discrimination.
There is no substance in the allegation of racial discrimination hence it is lacking in substance and is appropriate for summary dismissal.

[103]

This approach was adopted by Federal Magistrate Baumann in Damiano v Wilkinson [2004] FMCA 891. I am content to accept that as a proper formulation of what is required to demonstrate direct discrimination. I note that Section 8(1) uses slightly different language, speaking of discrimination occurring when a person was treated 'less favourably'. I accept however that whether one uses the word detriment or refers to less favourable treatment what is necessary to be shown is something of substance rather than something which is merely trivial. Mr Dalton conceded that in the industrial jurisdiction of the Federal Court it has been accepted that the administration of a formal warning to an employee does constitute a detriment because it is a 'black mark' on his record, the equivalent of an accrued demerit point. Here as I understood Mr Dalton's submission, since Mr Drummond resigned forthwith, the question of whether there was a 'black mark' on his record either with Telstra or Kellys was irrelevant once he ceased to be an employee. I reject that submission.
The interview in which Mr Drummond participated was by its very nature painful and humiliating. In making that finding I am not to be taken as finding that Ms Bishop or anybody else proceeded in a way that was unfair or unjustified. Whatever the fairness or justification for what she did was, the interview by its nature was painful and humiliating. I am prepared to infer that as a result of this process if Mr Drummond were to seek employment from Telstra in the future, he would have a black mark against him. Even in the absence of that consideration I regard the experience of the interview as sufficiently unpleasant to be regarded as a detriment of substance or as some form of less favourable treatment. Assuming that it can be linked as having his possession of his age attribute as a substantial reason for it, it might constitute age discrimination.
Mr Dalton also questioned how any detriment or unfavourable treatment to which Mr Drummond might have been subject could have been regarded as caused by Telstra. The allegation apparently reflecting on Mr Drummond's age is put by him in the mouth of Ms Hicks, a Telstra employee. Moreover as I understood it, at the hearing it was accepted by Mr Dalton that the process that led to the interview with Ms Bishop was set in motion by a Telstra employee who made complaint to Kellys.
The application under Section 75 for summary dismissal of the allegation of direct discrimination on age grounds is therefore unsuccessful.

[111]

Section 32 of the Charter requires us to construe Victorian legislation in a manner which is consistent with the terms of the Charter. In my view no Charter issue is properly engaged. The effect of Section 32 of the Charter is I think to apply the principle that no summary dismissal of a proceeding should be made other than in the clearest case with even greater rigour than otherwise might be.
Mr Drummond made reference to Section 32 of the Charter. In my view it has the operation which I have just described and hence again no Charter right is engaged. Mr Drummond also made reference to Section 15 of the Charter - Freedom of Expression; Section 38 - Conduct of Public Authorities and Section 39 - Legal Proceedings. It is not clear to me how the freedom of expression right is engaged. The other sections referred to appear in one way or another to turn upon whether the conduct of a public authority is involved. The definition of public authority in the Charter is to be found in Section 4. Without rehearsing the detail of that definition I do not believe that a company limited by shares carrying on a commercial business as Telstra does is to be regarded as a public authority for the purposes of the Charter, hence these other provisions have no application.
Nor in my view does the fact that Mr Drummond is unrepresented and Telstra is represented by a large law firm and Counsel in itself deprive him of the fair trial that Section 24 of the Charter guarantees. Section 24 of the Charter guarantees a fair hearing to a party to a civil proceeding. Section 25 gives certain rights in criminal proceedings to persons charged with criminal offences amongst those certain specific rights to legal aid referred to in Section 25(2)(d) and (2)(f). This indicates that whilst the Charter has certain guarantees with respect to legal aid, those guarantees extend only to criminal proceedings and not to civil proceedings. More generally in Ogawa v University of Melbourne [2005] VCAT 197; (2005) 22 VAR 344, Morris J then President of the Tribunal considered that the nature of Tribunal proceedings did not necessitate the provision of legal representation for a proceeding in the Tribunal despite the fact that the respondent to the proceeding was a large organisation represented by Counsel and a national law firm. The allegation therefore that the representation of the respondent by a large law firm and Counsel and the applicant's having to represent himself in themselves infringed the Charter must be rejected.

At a glance

Court

Decision date

Source

Judgment (112 paragraphs)

Parties

Cases Cited (1)

Drummond v Telstra Corporation Limited (Anti-Discrimination) [2008] VCAT 2630 (23 December 2008)