Gounder v Allmand [2007] VCAT 1898 | Case summary

In his complaint lodged with the Tribunal Mr Gounder alleged direct and indirect discrimination on the basis of the attribute of religious belief or activity in the area of employment. He set out a large number of particulars which he alleged constituted discrimination under the Act. At the hearing his counsel, Ms Andelman, refined the complaint to the following particulars:

On 17 March 2006 the respondents imposed on Mr Gounder an unreasonable requirement or condition which he, unlike his colleagues, could not comply with by reason of his religious belief or activity. The requirement or condition was that he must not engage in the religious practice of fasting when he was at work. This constituted indirect discrimination.
On 17 March 2006, he was issued with a written warning by Ms Jones (the warning letter). It was alleged that the written warning was based on the conversation of 17 March 2006 when Ms Jones told him not to fast and he said it was his "religious thing". It was argued that the written warning constituted direct discrimination.
The termination of his employment on 2 June 2006 was for reasons that included the attribute as a substantial reason and this constituted direct discrimination.
At a meeting attended by Mr Gounder, Ms Jones and Mr Edy Carlig, another partner of AJP, on 4 April 2005, he was reprimanded for taking leave to go to India. It was alleged that the reprimand related to the religious activity associated with his leave and constituted direct discrimination.

Gounder v Allmand [2007] VCAT 1898 | Case summary | Zoe

[36]

Mr Carlig and Ms Jones said that at a further meeting between the three of them on 8 April 2005, Mr Carlig told Mr Gounder his work was not up to standard and that Mr Gounder needed to stop relying on him in relation to small issues. They said that Mr Gounder did not appear to listen to the feedback and his work did not improve. Ms Jones said that AJP was trying to help him improve and she and Mr Carlig had tried to explain that when they pointed out his weaknesses it was intended to help him improve his skills. Ms Jones made a handwritten note of the conversation which was tendered in evidence.
Ms Jones said that in July/August 2005 she began to think that Mr Gounder was not suited to work at AJP because of his poor skills and that he was unsuited to public practice. She said Mr Carlig regularly expressed concerns to her about his work and she had discussions with Mr Gounder about assisting him to secure alternative employment. She said that AJP could simply have terminated his employment but the firm preferred not to leave him without alternative employment. She said he agreed to look for another job but he was not actively looking around to take up other opportunities. She denied an assertion by Mr Gounder that she spoke to him in an aggressive manner about finding another job or that she put pressure on him to do so. She said the opposite was true and she was trying to assist him.
Mr Carlig and Ms Jones said that on 8 November 2005 they reviewed Mr Gounder's work and noted several errors which they brought to his attention. Mr Carlig made a handwritten file note of that date headed "2nd Warning" which indicates that certain files were reviewed and issues raised with Mr Gounder in relation to his work. A file note made by Mr Carlig on 21 November 2005 also records a number of issues in relation to work performed by Mr Gounder. The note ends with the statement "at David's level of seniority he should have picked up these basics".
Ms Jones said that in about December 2005 she and Mr Carlig decided to delay Mr Gounder's annual review until January 2006 because of his poor performance. A memo from Mr Carlig and Ms Jones to Mr Gounder dated 6 December 2006 stated:

[55]

Mr Gounder was then escorted by Mr Carlig to his desk and out of the office. Mr Carlig and Ms Jones denied Mr Gounder's assertion that they were aware of his religious beliefs. They both gave evidence that they were unaware he was Hindu until he lodged his complaint with the Commission.
Mr Gounder denied that his work performance was poor and that he was unsuited to public practice and he said his work was good. He agreed he made some errors in his work but he gave various explanations for same including that unreasonable time restraints were placed on him making it impossible to achieve wholly accurate work, that he had been stressed as a result of AJP's treatment of him, that there had been an illness in the family, and that from the date of the warning letter he had been living in fear that he would be fired
Mr Gounder alleged that the work of other accountants in AJP, including Mr Carlig, was inaccurate and that he had corrected errors made by Mr Carlig. Mr Gounder said that he had not seen the memos and file notes made by Mr Carlig and Ms Jones (referred to in paragraphs 16 to 22) and he disputed the accuracy of those documents and the accounts of Mr Carlig and Ms Jones of various meetings with him. He said the file note of 5 April 2005 (referred to in paragraph 17 of these reasons) had been fabricated so far as it related to work performance issues.
He alleged that his work had been sabotaged by Mr Carlig and others in the firm by altering his correct figures in documents to incorrect figures. He said the purpose of the sabotage was to engineer performance issues in an attempt to set him up to fire him. He said that in the final week of his work at the firm most of the mistakes alleged by Mr Carlig and Ms Jones were a consequence of sabotage of his work papers. He attached to his witness statements financial documents of various clients of the firm by which he sought to corroborate his evidence.
Mr Gounder denied that AJP had made numerous requests to improve his performance. He said he had never received such a request in writing or a performance appraisal and that he was not given the opportunity for feedback in relation to his work.
Mr Carlig and Ms Jones strongly denied that Mr Gounder's work had been sabotaged. Mr Carlig said that the reality was that Mr Gounder was not doing his work properly and the only alterations were those Mr Gounder made to correct his own errors. They denied his termination and the warning letter were linked to his religious beliefs or his fasting.

[85]

He said that he was asked to perform tasks not required of other accountants of the firm including taking files to and from the storage area. He said he was required to perform this task on three occasions in February 2006 and one occasion in March 2006 (the implication being that he was singled out for this treatment). He said that on 28 February 2006 he was requested by Mr Carlig to help a Year 12 student search for files in the storage area, that this was an unusual request of an accountant and not asked of any other accountants.
He said that the activity at the storage area involved heavy lifting, was menial and that the dust in the storage area aggravated his sinuses and hay fever. He said that on 1 March 2006 he took leave due to "body aches and sinus/hay fever infection" which he said was aggravated as a result of dust and lifting heavy boxes in the storage area. He said that such work was not within the scope of his skills and experience and that physical lifting was inconsistent with his contract. He said that on 6 February 2006 he was asked to assist another employee to carry a heavy printer from the office to the car park and that this caused him to suffer from various ailments including dizziness and pain.
He said that on 22 July 2005 he suffered humiliation when Ms Jones required that his work be supervised by a university student. He alleged that the student had then incorrectly changed his correct figures. He said that in January 2006 Ms Jones asked him why he had made an error in figures he had prepared for a client. He told her he had been going through a very difficult time because of the illness of a family member. Ms Jones responded that she did not care and later told him that AJP did not want him at the firm and asked him whether he was "that bad that no one wants to employ you".
He described incidents at AJP where he alleged he had been humiliated by staff. For example, he said that in the final week of his employment the audit manager humiliated him in front of other staff by referring to mistakes he had made. When Mr Gounder examined the relevant files referred to by the audit manager he discovered he had only made one mistake and the other mistakes were a set up in that his correct work had been altered.
He said that he was humiliated by being escorted from the offices of AJP on 2 June 2006 when his employment was terminated. He had never seen anyone escorted in that manner without having the opportunity to say goodbye to colleagues and he noted that he was the only Hindu person at the firm. He said his employment was terminated because of his religious beliefs and that everyone at AJP knew of his religious and spiritual pursuits.

[86]

Mr Gounder's credit as a witness was a key issue in this case and acceptance of his allegations against the respondents in part depends on whether I accept his evidence or the evidence of Ms Jones and Mr Carlig. Overall I preferred the evidence of Mr Carlig and Ms Jones to the evidence of Mr Gounder for several reasons.
In my view, he was unwilling to make concessions and he appeared to have little insight into issues surrounding his work performance, preferring to blame others for his mistakes. For example, he said he "strongly disagreed" with Mr Carlig's evidence that AJP had made numerous requests to him to improve his performance. He said he had never seen "a single request in writing which I signed as received and provided my feedback". Given the evidence of Mr Carlig and Ms Jones that they raised their concerns with him over a long period, it is difficult to see how he could make such an assertion. Mr Carlig's evidence that Mr Gounder did not appear to listen to the feedback provided to him accords with my own impression of Mr Gounder's refusal to acknowledge the work performance issues.
Further, given the level of feedback provided by Mr Carlig and Ms Jones, it is difficult to attribute his refusal to acknowledge the respondents' concerns merely as a lack of insight and calls into question his credibility as a witness.
It is unnecessary for me to trace every element of Mr Gounder's allegations of sabotage in relation to the documents attached to his witness statement. However, I give one example in relation to Documents 38.1 to 38.8 in Exhibit A. Mr Gounder said he inserted the correct trial balance for a superannuation fund of a client and that Mr Carlig changed his correct figure with an incorrect figure. He said he was wrongly reprimanded for this. Mr Carlig said that when he reviewed Mr Gounder's figures for this fund the annual trial balance was inconsistent with the lead schedule. The figures he inserted were merely an attempt to reconcile Mr Gounder's figures. I accept Mr Carlig's evidence to this effect
I formed the view that Mr Gounder was prepared to make assertions without any foundation to bolster his case, his allegations of sabotage being an example. I note that the authorities state that the gravity of the allegations and the serious consequences to the respondents flowing from any adverse findings are proper considerations to take into account when determining whether the evidence meets the civil standard of the balance of probabilities. The necessary satisfaction must not be produced by inexact proofs, indefinite testimony or indirect references[1]. In my view, Mr Gounder's evidence did not meet the necessary standard of proof.
There were other aspects of his evidence that were unconvincing. For example, he asserted that he could not attend the storage area on 17 March as he was fasting. He said he was "pretty weak" and too weak to lift boxes and as he was fasting he would "be drained for the day". There was conflicting evidence as to whether he was required to lift any boxes of files or carry files to or from the storage area on that day and whether he had to perform heavy lifting. Whether or not he was required to carry files or lift boxes I was not convinced by his evidence that he was too weak to do so because he was fasting.
The duties he was required to perform when going to the storage area did not appear to be arduous and were performed by other employees. He was accustomed to fasting and had done so since Grade 6 at school. The only meal he had missed that day was breakfast and the request to attend storage was made early in the day around 9.00 am when he had been fasting for a very short period. He provided no medical evidence to support his assertion that fasting prevented him performing this task.
His email to Ms Jones and Mr Carlig on the 17 March 2006 (referred to in paragraph 35 of these reasons) and his evidence in these proceedings suggests that fasting was not a major consideration in his refusal to attend the storage area. He was of the view that it was unfair that he was required to carry out this task and that it was outside the scope of his contract. Further, in the email he asserts that he could not go to the storage area on 17 January due to his sinus allergy and hay fever, body aches, anxiety and other problems. A reference to fasting in the email appears to be an afterthought.
Mr Jacobs submitted that Mr Gounder was an evasive witness. He referred to the fact that when Mr Gounder was cross-examined about a complaint of racial discrimination made under the Act against a previous employer in 2004, he was unable to recall certain important details including the nub of the complaint. He was also reluctant to answer questions about his work performance at that firm. Mr Gounder later explained that he had been unable to answer fully the questions put to him because he was "going to the media" and he was not allowed to speak against the employer as it was confidential. As I understand his evidence, he had signed a confidentiality agreement when the proceeding was settled. Whilst such an agreement cannot excuse someone answering questions asked in the course of legal proceedings in a court or this tribunal, I accept that he may have been under a misapprehension as to the obligations imposed by any confidentiality agreement. Accordingly, I place no weight on Mr Jacob's submission.
I found Mr Carlig to be a convincing witness. He gave his evidence in a careful, straightforward manner, he was consistent, he was an accurate historian and he maintained his evidence during lengthy cross- examination. Where there was a conflict between the evidence of Mr Carlig and Mr Gounder, I preferred the evidence of Mr Carlig.
Ms Andelman submitted that I should not accept Ms Jones and Mr Carlig as witnesses of truth and she referred in particular to a letter dated 8 September 2006 sent to the Commission by AJP's solicitors. The letter stated in part that at no point during the conversation on 17 March 2006 between Mr Gounder and Ms Jones was religion discussed, that Ms Jones denied having directed Mr Gounder not to fast on a working day, and she denied reprimanding him for fasting on a working day. She also denied that Mr Gounder advised her that fasting was related to his religion. Having regard to the tape recording of the conversation these instructions are clearly incorrect.
Further, whilst Ms Jones in her evidence before the Tribunal denied she put pressure on Mr Gounder to find another job, the taped conversation of 30 November 2005 does not accord with her perception of her conduct.
In my view, these matters do not tell against Mr Carlig as he was not present when the 17 March conversation was taped. Ms Jones' memory of those conversations was shown to be imperfect in some respects and, at times, she seemed ready to exculpate herself by denials which were not ultimately sustainable. In the circumstances, whilst I accept her generally as a witness of truth, I have treated her evidence with caution. In accepting her evidence on a number of matters or preferring her evidence to the evidence of Mr Gounder, I have had regard to the fact that Mr Carlig has corroborated important aspects of her evidence. Further, I formed the view during cross-examination and evidence in chief she answered the questions asked of her candidly and in a consistent manner.

[87]

Direct discrimination occurs if the discriminator treats the subject with an attribute less favourably than he or she treats or would treat someone without that attribute, albeit in the same or similar circumstances: s 8(1)[2].
Section 7(2)(b) and (c) distinguishes between a characteristic and an attribute. Discrimination on the basis of an attribute includes discrimination on the basis of a characteristic which is associated with that attribute in one of the ways referred to in (b) and (c). Under s 8(2)(b) the substantial reason for the less favourable treatment must be the attribute and not the existence of the characteristic. Section 8(1) requires that the suppositious comparator must be placed in the same relevant circumstances as the subject's or those which are not materially different from his, or in the same or similar circumstances as his, as the case may be, but without the attribute related characteristic[3].
In Purvis v NSW [4] the High Court of Australia dealt with not dissimilar legislation, the Disability Discrimination Act 1992 (Cwth). The majority said at p185 that s 5(1) of that Act, in requiring a comparison between the treatment which the discriminator gives to the aggrieved person and the treatment that the discriminator would give to a person without the disability, requires that the circumstances attending the treatment given to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled.
As I indicated earlier, the parties accepted that fasting was a characteristic which is associated with the attribute (in this case religious belief). The less favourable treatment alleged by Mr Gounder is the "reprimand" in relation to the India leave, the warning letter and the termination of employment. There was also the general allegation of direct discrimination based on the treatment of Mr Gounder by the respondents when he returned from the India leave.
To be successful in establishing direct discrimination, Mr Gounder must establish on the balance of probabilities that the substantial reason for the warning letter and termination of his employment was his religious beliefs. It is not sufficient that Mr Gounder shows that the conduct was based on his fasting; he must relate the fasting and his religious beliefs together. In my view, the evidence does not establish the necessary causal link.

[89]

Ms Andelman submitted that the attribute was a substantial reason for the warning letter and termination of his employment. She contended that the warning letter and termination were based on the 17 March conversation in which Ms Jones told Mr Gounder not to fast. She argued that it was clear from the 17 March conversation that fasting was linked to Mr Gounder's religious beliefs. It would appear therefore that she relies on attribute and characteristic discrimination.
Ms Andelman argued that it was significant that the warning letter was the only written warning given to Mr Gounder and was issued immediately after the 17 March conversation. She acknowledged that the warning letter gave reasons for the warning other than his refusal to go to the storage area but she said his refusal to attend the storage area (based on his religious beliefs) was a substantial issue in the termination.
In my view, Mr Gounder did not establish the necessary connection between the conduct complained of and the attribute. I accept the evidence of Ms Jones and Mr Carlig that Mr Gounder's work performance was unsatisfactory, that his work was not up to the senior level at which he was employed, that they had informed him of their concerns on a number of occasions and that the warning letter was sent to him and his employment was terminated because of his poor work performance. Their contemporaneous file notes and memos are consistent with their evidence and generally inconsistent with the evidence of Mr Gounder. Those documents indicate a consistent theme of performance issues up to and after the 17 March conversation. For reasons given in paragraphs 54 to 60, I did not find Mr Gounder to be a convincing witness and I accept as more probable the account given by Mr Carlig of Mr Gounder's work performance.
Mr Carlig was in an excellent position to form a view about Mr Gounder's work performance. When Mr Gounder commenced employment with AJP he worked in Mr Carlig's team and it was apparent from the material before the tribunal that Mr Carlig reviewed much of Mr Gounder's work and was familiar with it.
I accept Ms Andelman's submission that it was apparent from the 17 March conversation that fasting was related to Mr Gounder's religious beliefs. Mr Gounder stated as much towards the end of the conversation. However, in my view, it is clear from the tenor of the warning letter that the respondents did not accept that Mr Gounder's refusal to comply with the direction to attend the storage area was necessitated by his fasting. For reasons provided in paragraphs 59 to 61, I also found his reason for refusal difficult to credit.
In my view, the timing of the warning letter does not add any real weight to Mr Gounder's case. The letter on its face and on the evidence of Ms Jones and Mr Carlig was provided in circumstances where Mr Gounder had not complied with a request to attend the storage area in the performance of the duties required of him by the respondents and in the context of ongoing performance issues. Whilst knowledge of the attribute is irrelevant in determining whether there has been direct discrimination, I accept the evidence of Ms Jones and Mr Carlig to the effect that prior to the lodgement of his complaint with the Commission they were unaware that Mr Gounder was an adherent of the Hindu religion.
Mr Gounder said that it was significant that the warning letter was the only written warning he received. Whilst this may have been the case he was fully aware of AJP's concerns in relation to his performance from meetings with Mr Carlig and Ms Jones well prior to 17 March. He had been asked to look for other employment, he did not receive any pay increase in January 2006 and his annual review in December 2006 was deferred because his professional work was not up to the standard expected by AJP.
In view of my findings, it is unnecessary to consider the application of the comparison required under the Act. The complaint in relation to the warning letter and termination has not been made out and discrimination has not been established for the purposes of s 14 of the Act.

[91]

The submission for Mr Gounder was that he was treated less favourably by reason of his religious belief or activity by being reprimanded for taking leave for spiritual reasons and this constituted direct discrimination. Ms Andelman also argued that there was a link between the India leave reprimand and the respondents' subsequent behaviour towards him and that from that date the respondent's attitude towards him changed and he was treated more harshly than other employees of the firm.
Ms Jones' evidence was that she raised the question of leave with Mr Gounder on 4 April 2005 because she needed to know if he had any further leave plans. Mr Carlig said that he had been surprised that Mr Gounder requested a month's leave as he did not have that amount of leave entitlement accrued and he had not previously raised the issue of leave with him. He said that he and Ms Jones agreed to let him take the leave, although with some reservation, because of the tax deadlines that arise during March.
I am satisfied that the file note accurately records the conversation at that time. It was the only contemporaneous document recording the conversation and the evidence of Ms Jones and Mr Carlig is consistent with the file note.
As an owner of the business, Ms Jones was entitled to ask Mr Gounder if he intended to take off further time that year, given her evidence and the evidence of Mr Carlig as to the circumstances in which he took leave. The evidence does not establish any link between this conversation, which Mr Gounder described as a reprimand, and the attribute.
Having regard to my findings, it is not necessary to apply the comparator. However, if I did so, following the reasoning in Purvis and Kapoor the comparator should have the characteristics that Mr Gounder has, but not be an adherent of the Hindu religion. Mr Jacobs submitted, correctly in my view, that the comparator would be someone not of the Hindu religion who had taken 4 weeks leave at short notice when leave had not accrued and there were work performance concerns. Mr Gounder has not established that the comparator would be treated differently in the same or similar circumstances.
Mr Gounder's other allegations of less favourable treatment are referred to in paragraphs 44 to 51. He has not established to my satisfaction that the attribute was a substantial reason for the alleged treatment or indeed that there was any link between the respondents' treatment of him and the attribute.

[93]

Mr Gounder alleged that he was indirectly discriminated against on 17 March 2006 when he was instructed not to fast. To make out his complaint of indirect discrimination under s 9 Mr Gounder must establish all the elements referred to in s 9(1). The first element requires that the respondents imposed or proposed to impose a requirement condition or practice. The Tribunal is not bound by the complainant's formulation of the requirement condition or practice but must ascertain the true factual position[5].
I have given some consideration to whether the requirement condition or practice imposed on Mr Gounder on 17 March 2006 was to attend the storage area. This is because there was considerable emphasis in the evidence on matters relating to this request of him on 17 March 2006, his refusal to do so, whether similar requests were made of other accountants in the firm, the tasks associated with attending the storage area, and whether the request was reasonable or within the scope of his employment contract.
Neither counsel contended however that this was the requirement. Ms Andelman contended it was that Mr Gounder not engage in the religious practice of fasting on a work day. Mr Jacobs submitted that if there was a requirement it was that employees should not attend work when they could not perform work duties because they were fasting.
After carefully considering the transcript of the tape recording and the tape recording of the 17 March conversation, I accept Mr Jacob's submission. The ordinary meaning of "fast" is "go without food"[6]. Ms Jones' remarks when Mr Gounder entered her office have to be judged in the context that he had refused to perform a duty which the respondents considered to be within the scope of his employment contract as he was fasting. She was complaining about him abstaining from food to the extent that he was disabled from performing his work duties.
Mr Gounder must identify a requirement or condition which is separate from the terms of his employment[7]. Neither party argued that this was not the case. Mr Gounder must also establish that any condition or requirement imposed by AJP was not reasonable. A consideration of reasonableness depends on the matters referred to in s 9(2). Reasonableness is a question of fact by weighing all relevant factors, including all financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons[8]. The test of reasonableness "is less demanding than one of necessity, but more demanding than a test of convenience"[9].
There was little evidence before me as to the reasonableness or unreasonableness of the requirement. As a matter of common sense however the requirement does not appear unreasonable. An employer is entitled to expect that an employee has the capacity to perform the work he is contracted to do. This means that the employee should have sufficient sustenance for this purpose.
I accept the respondents' evidence that Mr Gounder's work duties, although not specified in his contract of employment, required him to attend the storage area from time to time to deliver or collect files. This was also required of other accountants in the firm and Mr Gounder was aware it was required of him as prior to 17 January he had been asked to do so.
Whilst there was no evidence before me as to the matters referred to in s 9(2) of the Act, it is safe to assume that in a reasonably small accounting firm such as AJP, the employees should fairly share the burden of this task.
Mr Gounder declined to perform this duty on 17 January because he was fasting. In his evidence he said that he was "pretty weak" that morning although he did not advance that reason in his conversation with Ms Jones. In my view, if he was in such a weakened state at the commencement of the day when he had been fasting for only a short period his employer might well be concerned as to whether he could perform the other functions required of him including accounting functions requiring an alert mind.
Mr Gounder has not established that the requirement condition or practice is unreasonable as required by s 9(1)(c). In the circumstances, it is unnecessary for me to consider the remaining elements of the sub-section. Mr Gounder has not made out his complaint of indirect discrimination.

[94]

Ms Andelman submitted that the firm did not provide Mr Gounder with procedural fairness, and she refuted suggestions on behalf of the respondents to the effect that they were good employers. She said that Ms Jones was abusive and aggressive towards Mr Gounder on 17 March 2006 and she referred to the taped conversation of 30 November 2005. There is little doubt Ms Jones spoke to Mr Gounder in an unpleasant and inappropriate manner and her behaviour reflected poor management practice. However, as Byrne J observed in relation to the predecessor of the Act, the Equal Opportunity Act 1984, the Act does not deal with the behaviour of an employer that is industrially unwise, contrary to sound management principles, capricious or unjust[10]. The complainant must establish discrimination.
During the course of the hearing, Ms Andelman made an application pursuant to Section 108 of the Victorian Civil and Administrative Tribunal Act that I disqualify myself on the basis of apprehended bias and that the Tribunal be reconstituted. The application arose from questions I asked of Mr Gounder arising from a note on a sealed envelope in the Tribunal file containing a tape stating "tape recording of mediation removed from complainant at mediation". After hearing argument on the point, I dismissed the application and gave oral reasons for my decision. Ms Andelman did not require that the matter be referred to the President. During the course of her final submissions Ms Andelman said she "raised again" the objection she previously made in relation to apprehended bias. It is not clear in what context she did so given the matter had been dealt with earlier in the proceedings.
Ms Andelman was critical of the respondents' failure to proceed with a detailed investigation of the Tribunal file in relation to a complaint made by Mr Gounder against a previous employer, or to subpoena Mr Gounder's employment file from his previous employers, notwithstanding argument attending the production of these files. Nevertheless, the details of the other complaint and Mr Gounder's prior work history were at best tangentially relevant, and perhaps only to matters of credit. In those circumstances, it is difficult to attribute much significance to their not being pursued.

Gounder v Allmand

At a glance

Court

Decision date

Before

Source

Judgment (105 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Gounder v Allmand (Anti Discrimination) [2007] VCAT 1898 (17 October 2007)