Victorian Civil and Administrative Tribunal|2000-09-30

Jamieson v Benalla Golf Club Inc [2000] VCAT 1849 (30 September 2000)

CATCHWORDS Anti-Discrimination - application for employment - whether Applicant's tattoos the reason for not filling the position applied for - whether statements made to Applicant by President of club affected the processing of applications for the positions - whether tattoos physical features - Equal Opportunity Act 1995 ss 4, 8, 13 and 102

DEPUTY PRESIDENT: I reserved my decision on this complaint. My decision is that the complaint is dismissed. I have provided in my order that costs are reserved and given the respondent liberty to apply on the question of costs so that will include, of course, costs - I also should say that there has been previous liberty to apply in relation to earlier directions on the matter of the strike out application. That liberty, in relation to the parties, continues. Those matters, I would anticipate, would be dealt with after I give my reasons for this decision.

I now give my reasons for my decision. On 27 April 1999 Mr Jamieson lodged a complaint of physical features' discrimination with the Equal Opportunity Commission which, in these reasons, I call the Commission. The Commission declined the complaint as misconceived. At Mr Jamieson's request the Commission referred the complaint to this Tribunal under s.108 of the Equal Opportunity Act 1995 which I will call the Equal Opportunity Act.

The referral was received by this Tribunal on 21 June 1999 although the Commission's letter of referral is dated 15 June 1999. The respondent, which is the Benalla Golf Club, which I call in these reasons the Club, then applied to have the complaint struck out. The application was unsuccessful.

The respondent, unsuccessfully, applied to the Supreme Court for leave to appeal that decision. Leave was refused. Amended particulars of complaint and amended particulars of defence have been filed and served.

The complaint came on for hearing on 28 August 2000. The evidence before the Tribunal consists of witness statements which were adopted by the various witnesses in their oral evidence, of oral evidence given by those witnesses and of tendered documents. The parties were represented by counsel.

I first briefly summarise the law and then make my findings of fact and finally apply the law to the facts as I have found them in the light of the submissions made on behalf of the parties.

It is clear from the submissions made by Mr Jamieson's counsel that Mr Jamieson's case is the Club directly discriminated against him, against Mr Jamieson, on the basis of his physical features - the relevant physical features being alleged to be Mr Jamieson's tattoos - by either determining that he should not be offered employment with the Club or by refusing or deliberately failing to offer him employment or to offer him a job interview after he had applied for employment with the Club.

Mr Jamieson's case is that the discrimination arises from the conduct of the Club's president, Mr Sherlock, and that the Club is vicariously liable for that conduct under s.102 of the Equal Opportunity Act. I deal later with the Club's defences to these claims.

I now briefly summarise the law. Section 6 of the Equal Opportunity Act lists the attributes on the basis of which that Act prohibits discrimination in various areas of activity. One of these attributes is physical features in s.6(f). Section 4 defines physical features. It provides, "Physical features means a person's height, weight, size or other body characteristic".

The effect of s.8 is that a person directly discriminates against someone with an attribute if the person treats or proposes to treat the other person less favourably than in the same or similar circumstances he or she treats or would treat someone without that attribute or with a different attribute. The attribute must be a substantial reason for the treatment although it need not be the sole or dominant reason for it.

The discriminator's or the alleged discriminator's motive is irrelevant, see s.10. The discrimination can be constituted either by act or omission, see s.11(b). Section 13 of the Equal Opportunity Act relevantly provides, "An employer must not discriminate against a person (a) in determining who should be offered employment, (c) by refusing or deliberately omitting to offer employment to the person".

It is clear from s.7 that discrimination in this context includes both direct discrimination as defined by s.8 and indirect discrimination on the basis of an attribute. Section 102 provides, "If a person in the course of employment or while acting as an agent, (a) contravenes a provision of Part 3, 5 or 6 or (b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6, both the person and the employer or principal must be taken to have contravened the provision and a complaint about the contravention may be lodged against either or both of them". Section 103 provides a defence to an employer or principal but this provision is not relied on by the Club. I discuss the application of these provisions in more detail later.

I now turn to my findings of fact. The evidence of the witnesses in this case has been somewhat difficult to evaluate. The three major witnesses, Mr Jamieson, the Club president, Mr Sherlock, and Mr Hales, the Club manager, from 23 November 1998 until late January 1999, have all made earlier statements, that is statements at earlier stages of the processing of this complaint, that are significantly at variance with the evidence that they gave to this Tribunal.

While this does not lead me to reject the evidence of any of these witnesses in its entirety or to find that any of them is a wholly untruthful witness, it does affect the weight of those parts of their evidence which is inconsistent with those earlier statements. In respect of those parts of their evidence I have not been prepared to use those parts as a basis for findings unless those parts are supported by the evidence of other witnesses.

The critical conversation for the purposes of this case occurred on 2 February 1999 between Mr Jamieson and Mr Sherlock at Mr Sherlock's office in Benalla. The Club's treasurer, Mr Robins, was present during that conversation. Mr Robins' evidence was internally consistent and I regard him as a witness of truth. However, the weight of his evidence is somewhat lessened by the fact that clearly at the hearing he had difficulty in hearing what was said and he gave evidence that he was not wearing his hearing aid when he went to Mr Sherlock's office on 2 February 1999, and that it might have been possible that he did not hear some of the conversation or did not hear it clearly. I take that into account when assessing the evidence.

I now make my findings. Mr Jamieson has 72 tattoos, they are on his legs and on his arms. They are not visible if he wears a long sleeved shirt and trousers; they are visible if he wears a short sleeved shirt or shorts. The tattoos were acquired when he was between the ages of 16 and 18 and at that time had recently joined the navy. After leaving his employment with VicRoads in October 1998 Mr Jamieson heard on the grapevine, as he puts it, that a job vacancy would soon arise at the Club.

He went to Mr Sherlock's office and sought his help in writing a job application and a curriculum vitae or CV. Mr Sherlock arranged for his CV to be typed up and encouraged him to apply when the vacancy was advertised. At this time and at all material times when the discrimination is alleged to have occurred, Mr Sherlock was president of the Club. He is now no longer president.

He also was the proprietor of an employment agency business called Rite Personnel. It was to Rite Personnel's office that Mr Jamieson came to see Mr Sherlock. Mr Jamieson's evidence was that he already knew Mr Sherlock well, but Mr Sherlock denies this. I accept Mr Sherlock's evidence on this point. Mr Jamieson's evidence is that he believed that Mr Sherlock was not acting as his employment adviser but was helping him because of his involvement with the Club.

Mr Sherlock denies this and says that he was acting as Mr Jamieson's employment adviser. It was Mr Sherlock's practice to ask clients of his employment agency to sign what he called an employment seeker's statement. Although he completed such a statement for Mr Jamieson, Mr Jamieson did not sign that statement. Mr Robins, who was Club president at all material times when discrimination was alleged, gave evidence that he, Mr Robins, was present on 2 February 1999 at Mr Sherlock's office to discuss Club affairs, namely the purchase of a new computer for the Club. Mr Sherlock gave evidence that applicants for positions with the Club would sometimes deliver their applications to the Club manager and sometimes through Rite Personnel. I am satisfied that in matters such as the receipt of job applications for positions with the Club there was no clear distinction made, and Mr Sherlock made no clear distinction whether he acted on behalf of the Club or in his capacity of employment agent when he received those applications.

On 18 November 1998 in the Benalla' Ensign' newspaper the Club advertised for a position of food, beverage and gaming attendant, level 2. The advertisement stated that applications for the position were to be made to the Club manager and that Kerry Waite, then the assistant Club manager, could be contacted for further information.

The closing date nominated in the advertisement in relation to applications was 27 November 1998. Mr Jamieson applied before the closing date. Other people also applied for the position. The estimate of the number of applicants varies according to the evidence of Mr Hales and Mr Waite, but I am satisfied that there were between five and ten applications in all.

On 23 November 1998 just before the closing date of applications, the Club appointed a new manager, Mr Hales. It is clear from the evidence that Mr Jamieson enquired more than once about the progress of his application. The number of times on which he made such enquiries is in dispute. Mr Jamieson says he enquired about his application three times in January 1999 from Mr Hales and more than once from Mr Waite.

Mr Hales and Mr Waite say that he saw each of them once. On this point I prefer their evidence. In December 1998 Mr Hales and Mr Waite discussed whether there was a current need for the position advertised on 18 November 1998. I should add the position was a casual one. They decided that the position would be held in abeyance until at least the New Year. Mr Hales reported this view to the gaming and finance committee of the Club. There is no mention that I can find in that committee's minutes of this report but there was evidence from Mr Sherlock and Mr Hales that the report was made. I accept that evidence.

Mr Jamieson says that Mr Hales told him in January 1999 that the position was to be readvertised and that he need not re-reply and that his application was being processed and that he would be advised of its outcome. Mr Hales says that he told Mr Jamieson that the position was being held over until after the New Year and that no decision had been taken. On this point I prefer Mr Hales' evidence.

What had in fact happened to the application for that position was this: Mr Hales had read the applications, including Mr Jamieson's application, and put them into a file. Although in his evidence Mr Hale called this assessing the applications, it was clear from his evidence that he did not prioritise the applications in order of merit or suitability and did not short list them for the purpose of interview and did not reject or discard any application.

A good deal of evidence was given about what Mr Sherlock called the Club's firm policy concerning appointment to positions. His evidence was that applications were short listed, which he said meant prioritised rather than put through a culling process by the Club manager, sent to an employment sub-committee of three, of which Mr Sherlock was a member but not the chair, and that that committee decided whom to interview and held interviews and recommended an appointee, and that this recommendation then went for ratification to the gaming and finance sub-committee of the Club and finally to the Club's general committee for ratification.

However, it is clear from the evidence that whatever might have been the case with senior or permanent appointments, different and far more flexible and varied procedures were followed for casual appointments such as the position for which Mr Jamieson had applied. These casual appointments were sometimes made by the Club manager, sometimes by the Club's employment sub-committee and sometimes were recommended by the manager to the employment sub-committee or the gaming and finance sub-committee and ratified by that committee.

In relation to applications for the position advertised on 18 November 1998 I am satisfied that apart from Mr Hales reading the applications and placing them in a file, nothing more was done until Mr Shannon's appointment as Club manager on 22 March 1999, after Mr Hales' resignation late in January 1999. After Mr Hales decided that the position should be held in abeyance, the status of the position was not raised again, either by Mr Hales or with the employment sub-committee or with the gaming and finance sub-committee. Applications were not acknowledged, applications were not short listed, applicants were not interviewed, the position was not filled.

There is nothing from the evidence on which I could infer that the reason for this inaction was Mr Jamieson's tattoos. I am satisfied that the reason for the position being held in abeyance was Mr Hales' view that there was not a current need for the position. The matter was not revisited. There is nothing in the evidence from which I could infer that this was because of Mr Jamieson's tattoos. It is more probable in my view, that the need for the position was not revisited because, as Mr Hale said in his evidence, he was very busy at that time and the evidence was that he then resigned in late January 1999.

When Mr Shannon became manager in March 1999 he adopted a very different approach to the appointment of staff from that adopted by previous managers. He selected and interviewed potential employees and reported his recommendation to the gaming and finance sub-committee. That sub-committee has not refused to ratify any of his recommendations. Mr Shannon took the view that the files of previous applications, which contained applications some of which were more than two years old, was no longer relevant to the Club's present needs and discarded all applications made prior to January or February 1999.

There is nothing in the evidence to indicate that Mr Jamieson's application or his tattoos had anything to do with this decision. I now come to what happened on

2 February 1999. On that day Mr Jamieson went to Mr Sherlock's office and Mr Sherlock and the Club treasurer, Mr Robins were there. The witnesses' estimates of the length of the conversation between Mr Sherlock and Mr Jamieson varied, but I am satisfied that it lasted between 15 and 25 minutes.

The conversation was broken while Mr Sherlock from time to time attended to other business. The accounts of this conversation by Mr Jamieson, Mr Sherlock and Mr Robins vary. Where Mr Robins' evidence is clear about the contents of the conversation, I prefer that evidence to the evidence of the other two, for the reasons I have earlier given.

I am satisfied that the conversation was as follows. Mr Jamieson asked about the progress of his application and it was clear that that reference related to the position advertised on 18 November 1998. Mr Sherlock raised the subject of Mr Jamieson's tattoos, saying that they might be a reason why he was having difficulty in finding employment and that some members of the community and the Club might find them offensive. I am not satisfied that Mr Sherlock said that Mr Jamieson should forget about the position or an interview for it, or that he said that certain members of the Club's committee would not employ him because they found his tattoos offensive, or that Mr Sherlock refused to tell Mr Jamieson who the members of the committee were, or that he said that when the new manager was appointed that manager may have worked with someone who had tattoos and might have found that they could do the job, or that he said that he would deny the conversation if the matter went to the Equal Opportunity Board, or that Mr Robins motioned to Mr Sherlock to be quiet.

I am satisfied that Mr Jamieson raised the possibility of wearing a long sleeved shirt and that Mr Sherlock said if you wear a long sleeved shirt in the middle of summer people will wonder what the hell is wrong with you. As I have said, I am satisfied that in dealing with this application there was no clear distinction as to whether Mr Sherlock was telling Mr Jamieson this as Club president or as employment adviser. The conversation then ended and Mr Jamieson left Mr Sherlock's office.

I now apply the law as I have stated it to the facts as I have found them. Assuming, but without deciding, that tattoos are physical features, I am not satisfied that there has been direct discrimination or a contravention of s.13 of the Equal Opportunity Act by Mr Hales, Mr Sherlock or the Club. On the evidence neither the Club nor its employment sub-committee or gaming and finance sub-committee took any decision in relation to the position for which Mr Jamieson applied or in relation to his application for that position.

Mr Hales was clearly an employee of the Club and dealt with this position in the course of that employment. Under s.102 the Club could be vicariously liable for his acts or omissions but Mr Hales took no decisions in relation to the position for which Mr Jamieson applied or in relation to Mr Jamieson's application for that position, or for that matter in relation to the applications of any other applicants.

There was no determination by Mr Hales not to offer employment to Mr Jamieson, that is to Mr Jamieson as an individual, or to refuse employment to Mr Jamieson, nor any deliberate failing to offer employment to him. What happened was that after the receipt of applications nothing was done in relation to the position. It was simply left in abeyance. I doubt if this can constitute deliberate failure to offer a position to a particular individual. Even if it could be capable of constituting a deliberate failure to offer a position to Mr Jamieson, Mr Jamieson has not satisfied me on the balance of probabilities that Mr Hales directly discriminated against him. There is nothing to indicate that Mr Hales' reason for holding the position in abeyance was Mr Jamieson's physical features.

Mr Jamieson was not treated less favourably than the other applicants for the position, whatever their physical features might have been or for that matter than any hypothetical applicant for the position without Mr Jamieson's tattoos. No applicant was short listed, interviewed or offered the position, the position was simply left in abeyance.

I now come to Mr Sherlock's conduct. Mr Sherlock's comments to Mr Jamieson on 2 February 1999 were based on his tattoos and for this purpose I assume tattoos to be physical features. I am satisfied that Mr Sherlock would not have made the same comments to a person without tattoos and that the making of those comments constituted less favourable treatment of Mr Jamieson, the tattoos being a substantial basis for that treatment. But the claim is that Mr Sherlock directly discriminated against Mr Jamieson by contravening s.13, paragraph A or C, that is, by determining not to offer him the position with the Club, by refusing to employ him in that position or by deliberately failing to offer him that position.

Mr Sherlock had any part in Mr Hales' decision to hold the position in abeyance or had anything to do with the processing of applications for that position. On the evidence, the decision to hold the position in abeyance was made long before the conversation between Mr Sherlock and Mr Jamieson; long before, that is, 2 February 1999.

I would add that I am not prepared to construe the conversation as indicating clearly any decision about Mr Jamieson's application for the position. There is nothing in the evidence to indicate that Mr Sherlock held himself out as authorised by the Club to make such a decision or that Mr Jamieson believed that Mr Sherlock was authorised to make such a decision.

What the evidence indicates is that Mr Jamieson thought Mr Sherlock would know about the progress of his application. It is clear from the evidence that the Club had not actually authorised Mr Sherlock as president to make decisions about the position for which Mr Jamieson had applied or about Mr Jamieson's application for that position. I am not satisfied that Mr Sherlock held himself out as being so authorised.

It follows that I am not satisfied that when Mr Sherlock said what I have found he said on 2 February 1999 he either contravened s.13 or did so by acting as an agent for the Club. Section 102 then cannot apply to make the Club vicariously liable for Mr Sherlock's conduct. On these bases the complaint should be dismissed.

Although it is not necessary for my decision, I wish to express my views about whether tattoos are physical features within the meaning of that term in s.4 of the Equal Opportunity Act and are therefore an attribute under s.6 of that Act. I do so because of the length and complexity of the submissions made by the parties on the subject and because there was an argument that if tattoos were not physical feature this Tribunal would have no jurisdiction to hear this complaint.

In my view tattoos are a bodily characteristic, that is, a characteristic of the body and so fall within the definition of physical features in s.4. They are not expressly excluded from that definition. While it might be possible to argue that the words "other bodily characteristic" in that definition are qualified by the words which precede them, so that that phrase refers to characteristics similar to height, weight and size, those characteristics, height, weight and size do little to take away from or limit the generality of the words "or other bodily characteristic". Those characteristics are visible, distinctive and are attributes of the body.

Although height is not a matter of choice, weight and size, at least to the extent that size is dependent on weight, are at least in some circumstances. The acquiring of tattoos is of course entirely a matter of choice. In my view the choice of the words "physical features" as the definition itself, the term which is being defined, cannot be ignored when construing the rest of the definition. In its ordinary meaning physical features would embrace any distinctive bodily mark or attribute. I consider that the words "other bodily characteristic" has a broad meaning when looked at in this way. I note of course that there is no express exclusion of characteristics acquired after birth or of characteristics acquired as a matter of choice, as long as they can be described as characteristics of the body.

Because in my view the meaning of the words in the definition of physical features are clear, I do not need to resort to the Attorney-General's Second Reading Speech on the Bill that eventually became the Equal Opportunity Act to clarify the definition. See the speech which is dated 4 May 1995, see also Rizza v. Fluor Daniel GTI Australia Pty Ltd 1999 1 Victorian Reports p.405, particularly pp.411-414 and R v. Bolton ex parte Bean 1987 vol.70 Australian Law Reports p.225.

It is clear that where legislation is obscure or ambiguous a court or Tribunal may, and I emphasise that this is a discretion under s.35 of the Interpretation of Legislation Act 1984 Victoria, have regard to the Second Reading Speech. If I am wrong and the definition of physical features is ambiguous then it is clear from the Second Reading Speech delivered by the Attorney-General that there was an intention, at least by the Attorney-General, that physical features should not encompass tattoos, but this is not the end of the matter.

The Second Reading Speech cannot limit what are in their terms words having a broad meaning in the definition, particularly where Parliament has chosen not to exclude tattoos expressly from that definition. Section 35 of the Interpretation of Legislation Act does not mean that the Second Reading Speech can be used to override Parliament's intention as determined from the statute itself. The Second Reading Speech, like the other material referred to in that section can be used to help determine the object or underlying purpose of the legislation. Once that has been determined a construction must then be adopted which will promote rather than not promote that purpose if that construction is possible.

The objects of the Equal Opportunity Act is set out in s.3. Those objects include the promotion of the recognition and acceptance of everyone's right to equality of opportunity, the elimination as far as possible of discrimination by prohibiting it on the basis of various attributes and providing redress to the victims of discrimination.

These objects would, in my view, be better met by a broader rather than a narrower interpretation of the words "other bodily characteristics" in the interpretation of physical features, so that the protection given by the Equal Opportunity Act to those with that attribute is not based on final technical distinctions between one physical characteristic and another. This view also accords with a liberal construction which where possible should be given to this legislation as human rights related legislation. See Waters v Public Transport Corporation 1991 Equal Opportunity Case 92-390.

On this question I broadly agree with the submissions made on behalf of the complainant on the strike out application of this complaint and with the Tribunal's conclusion on the strike out application, although I recognise that that was a different proceeding. On the other hand of course I broadly agree with the respondent's submissions in relation to the state of the evidence in relation to this complaint.

In conclusion I would add that on the evidence it is clear that to some extent the comments made by Mr Sherlock, and to a much greater extent this litigation, has distressed Mr Jamieson and has adversely affected his and his family's life. Some of the medical evidence indicated that the end of this litigation would mean a lessening of that distress and those adverse effects. It is to be hoped that this will be the case. That concludes my reasons for decision.

Let me first ask the parties do they want written reasons. Mr Selimi?

MR SELIMI: Certainly the complainant would like to have written reasons or a transcript of the written reasons.

DEPUTY PRESIDENT: Certainly, once you ask for that then we will obtain transcript. We will just give you a piece of paper to sign indicating that request for the file so there is a record. As far as costs are concerned, let me begin, the costs on the strike out application we reserved, do you apply for them, Mr Selimi?

MR SELIMI: Yes, we do but having heard what the Tribunal indicated earlier, we'd agree with respect that it might be appropriate to file written submissions.

DEPUTY PRESIDENT: Do you apply for costs in relation to the complaint itself, Mr Fehring?

MR FEHRING: Yes, I will, I think it is appropriate that we make written submissions in relation to those matters.

DEPUTY PRESIDENT: Certainly. You do not clearly apply for costs on the strike out application.

MR FEHRING: I will seek some instructions but I hear what the Tribunal says and I will pass that on to those who instruct me, as to your comments.

DEPUTY PRESIDENT: What I will do now is make a timetable for submissions on these costs applications. I think seven days, seven days, seven days should be enough, are you happy about that Mr Selimi?

DEPUTY PRESIDENT: So seven days written submissions. What I might do is, since you have got two sets of applications if you like, I might simply direct the parties to exchange written submissions within seven days in relation to each of their applications for costs and then permit the next seven day period for a response to those applications from the parties, and again submissions will be exchanged, filed of course with the Tribunal and finally last replies seven days from then. I will now reduce those directions to writing and if you can wait five minutes I will give you a signed copy. Thank you very much.

Opportunity Act 1995

Legislation Act 1984

Jamieson v Benalla Golf Club Inc [2000] VCAT 1849

At a glance

Court

Decision date

Source

Judgment (66 paragraphs)

Jamieson v Benalla Golf Club Inc [2000] VCAT 1849 (30 September 2000)

Parties

Legislation Cited (2)