Order the Respondent to pay the Applicant the sum of $3,000.

1. This case involves allegations about the conduct of various employees of ISS Facility Services Pty Ltd (ISS). Mr Jemal (the applicant) alleges that employees of ISS acted in a way such that he was treated unfavourably because of his race and disability. He also alleged victimisation.
2. Mr Jemal was born in Ethiopia. He claimed that his disability was thyroydism.
3. He has been employed at ISS since February 2006 as a security officer.
4. During this period he has worked at various locations. He has previously made complaints about his treatment by other employees. A complaint was lodged with the Victorian Equal Opportunity and Human Rights Commission (the Commission) in June 2010 in relation to allegations of discrimination and victimisation between 2008 and 2010.
5. The Commission investigated this complaint and conciliation was attempted but was ultimately unsuccessful. Accordingly, the Commission wrote to Mr Jemal on 17 January 2011 advising that it would dismiss the complaint if Mr Jemal did not request a referral to this Tribunal.
6. Mr Jemal did not request this referral and in a letter dated 13 May 2011 the Commission dismissed his complaint.
7. Mr Jemal made a further complaint to the Commission in August 2012. The issues raised related to salary, roster, overtime and working conditions. Conciliation was again unsuccessful and the Commission closed its file in July 2013.
8. Mr Jemal then lodged an application with the Tribunal in December 2013 which he amended in March 2014. In his application he referred to a series of events between 14 September 2011 and 14 November 2013 and sought unspecified reimbursement of medical expenses, discrepancies in wages and a full investigation of his complaint.
9. I heard the matter on 21, 22 October and 8 December 2014.
10. After hearing evidence and submissions from both parties, I reserved my decision.
11. These are the reasons for my decision.

1. In its final written submission before the hearing, ISS claimed that any events that had previously been dealt with by the Commission prior to the introduction of Equal Opportunity Act 2010 (the EO Act) could not be the subject of this application as those matters were dismissed on 13 May 2011.
2. As stated above Mr Jemal's complaint was dismissed on this date.
3. Section 194 of the EO Act deals with alleged contraventions before the commencement day. In essence, s.194 (2)[1] does not allow incidents that have been the subject of a complaint to the Commission under the Equal Opportunity Act 1995 to be raised in an application to the Tribunal.
4. I asked Mr Jemal if he had any comments about this. He said he only wanted to raise evidence about events before August 2011 as context for the current complaints. ISS had no objection to this.

1. Mr Jemal referred to the following incidents in the attachments to his application:
   • Early October 2009 - instructed to check sanitary bins which was not part of his job description.
   • 14 September 2011 - comment from Peter Bonello that he "looked like a gorilla".
   • 15 March 2012 - issue concerning provision of uniform.
   • 16 April 2012 - issues arising as a result of ISS's loss of contract at 242 Exhibition Street, and availability and suitability to work at Melbourne Airport.
   • September 2012 - issues involving three applications for work at other locations and lack of explanation about why unsuccessful.
   • 30 October 2012 - suggestion from former site manager that he should resign.
   • 22 February 2013 - allegation that the supervisor asked him how to do black magic.
   • 26 March 2013 - alleged threats in relation to roster.
   • 27 March 2013 - alleged racial slurs and use of the word "Ghulam".
   • 22 April 2013 - further issues regarding the roster and implications that he was a troublemaker and should resign.
   • 6 August 2013 - telephone call transferred so that other employees could listen.
   • 15 August 2013 - alleged lack of teamwork.
   • 27 August 2013 - alleged comment from second in charge that another worker was superior to him.
   • 5 September 2013 - required to work outside and undertake tasks that could not be completed in a reasonable time.
   • 14 November 2013 - alleged threat from co-ordinator.
   • Salary, Roster and overtime:
     • under payment of wages for 12 months
     • demotion from level 4 to level 3
     • lack of response from payroll in relation to wage enquiries
     • lowest paid employee despite eight years experience
     • bias and favouritism in relation to rosters and voluntary overtime
   • Working conditions:
     • working language spoken not English
     • no standing order procedures
     • lack of punctuality by supervisor
     • lack of proper process in relation to vacancies for on-site supervisor position
     • ongoing intimidation and bullying tactics
     • restricted work e-mail and restricted access to portal
     • protective clothing not supplied
     • inadequate break within a 12 hour shift
     • being required to work by himself when there should be at least two workers
     • no common practice of ringing other employees on an hourly basis to check safety
     • no duress alarm
     • constantly monitored by CCTV cameras
2. In evidence to the Tribunal Mr Jemal expanded on these issues:
3. He said that in 2009 he had been forced to check sanitary bins when this was not part of his job. He complained at the time and was told that this was part of his work and he could formally complain later. He finished the job and the contractor came later. He had the next day off as a result.
4. In cross-examination, Mr Jemal was referred to an email that indicated that the contractor would attend to carry out these tasks. He said that he completed the task on one occasion but because of his physical reaction did not undertake these duties again. He said that the contractor did not attend on the day that he completed the tasks.
5. It was put to Mr Jemal that his evidence was inconsistent in that earlier he said that the contractor did attend.
6. Mr Jemal did not explain this inconsistency
7. Mr Jemal said that in September 2011 Peter Bonello accused him of being homosexual and that he looked like a gorilla. This created a situation where he felt isolated in his work environment.
8. In March 2012 he complained about breathing difficulties due to the size of his uniform (his shirt was too small) and that he had torn pants. He suffered from hypothyroidism which resulted in his glands swelling. He emailed Adrian Trifillo about this issue and was told he would have to continue with his existing uniform. He found this degrading. He did not attempt to patch the hole in the pants. He believes a former ISS employee, who was working in the same building, influenced Adrian.
9. In April 2012, all staff who had been working at the Telstra office were offered work at Melbourne Airport.
10. He used to work at the airport. He told John Koumantaros that he was unable to work at the airport now because of an elegy to perfume. Mr Koumantaros said that in this case he should resign. He then changed his mind and was going to attend an interview when Mr Koumantaros told him that he was a security risk and that he would be referred to another client at 447 Collins Street. He said that this is an example of favouritism and discrimination by ISS.
11. As the referral to 477 Collins Street was a temporary position he was also referred to three other places for an interview. One was Maroondah Hospital where he was told no position was available, one was Australia Post where the manager was happy with him and requested his resume, but ISS decided not to send him there.
12. In October 2012 Adrian Trifillo then told him that he should resign as there was no work for him.
13. He was the only employee without a permanent site and he was discriminated against in the work roster. He was not given his fair share of work on the weekend. This was given to casual staff and not himself.
14. In February 2013 he was asked by Tariq Muhammad how to do "black magic". There had been no prior discussion about this. He was offended by this. Also Mr Muhammad arrives to work late and he has to do extra work because of this.
15. In March 2013 he was asked to agree to a fixed roster which would result in a loss of wages. The person responsible for the roster, Michael Topici, threatened to make working life harder and to take away voluntary overtime. Later that month Ajit Panu referred to him as a "Ghulam" which means slave.
16. In April 2013, Michael Topici suggested he resign if there was an issue with the roster. It was implied that he was a troublemaker.
17. In August 2013 he called in sick. The call was transferred to the gatehouse so that other workers could listen. There was also an incident where he was left working by himself, while his co-workers remained inside. There were other conversations that suggested that he was a lower class and therefore should do the outside work.
18. In September he was again required to work outside and do tasks such as a "bag check". When he was unable to finish the work, he was reported.
19. He was employed at level 4. On 1 June 2013 this was changed to level 3. The difference in pay was about $80 per fortnight. Of the eight staff, three were changed to level 3, but he has more experience than these other workers.
20. The working conditions are inadequate. He cannot bring his own clothes, he is the least paid compared with other workers and the allocation of voluntary overtime is unfair. He has also tried to get records of his work hours so he can check that he had been paid correctly, but these have not been provided.
21. Mr Jemal indicated on the third day of hearing that he was unable to obtain verification of his medical costs. He estimated that his prescriptions cost approximately $200. He had no written evidence to substantiate this.
22. He also had no further information concerning his claim in relation to wages other than stating that he was seeking $4200 in unpaid wages and $800 for an under payment of wages.
23. He produced a number of letters from various healthcare professionals. He indicated that Dr Smeeton is his GP and he has been seeing her for approximately 2 years.
24. The letters handed to the tribunal were:
    • A letter dated 5 November 2014 from Dr John Wentworth, endocrinologist.
    • A letter dated 11 September 2009 from Dr Hugh Leslie
    • A medical certificate dated 3 December 2014 from Dr S Smeeton

1. Mr Panu gave evidence including the following:
2. He started work in October 2012. He offered overtime to everyone depending on availability. He worked at the gatehouse with Mr Jemal and denied that Mr Jemal had to work by himself. There were always two guards at the gatehouse.
3. He denied using the term "Ghulam" and that he was too busy to help Mr Jemal on 15 August. He also denied denigrating Mr Jemal. All the workers try to help each other and work as a team.
4. It was not only Mr Jemal who was reduced to level 3, 10-11 workers were reduced to this level. They all got letters.
5. He may have said another worker was "born with a silver spoon" but he wasn't suggesting that Mr Jemal was inferior. There was no reason for Mr Jemal to draw this conclusion.
6. All workers are given the same uniform. He finds it adequate.
7. There is enough time in the 12 hour shift to take a break.
8. In cross-examination, Mr Panu said that generally Mr Jemal works well, he does wear headphones some of the time though. They always speak in English at work. He thinks "Ghulam" means student.

1. Mr Muhammad gave evidence including the following:
2. He denied asking Mr Jemal to do "black magic". They had been discussing religion on occasions and often Mr Jemal promoted this discussion.
3. He also denied that Mr Jemal was working longer hours - the work is multi tasked and they all contribute. He denied that Mr Panu had used the term "Ghulam".
4. He did not divert a call to other colleagues after Mr Jemal rang in sick.
5. All guards were moved to level 3, not just Mr Jemal. This is an issue for the client and the company. It was not directed at Mr Jemal.
6. All guards are issued with raincoats, safety shoes and cargo pants. The 12 hour shift that they work is very flexible. There was a request for rain pants, but no one got these.
7. Overtime is an issue that is often raised, but usually when it was offered, Mr Jemal would refuse.
8. There is an Operations Manual on site - it is in hard copy and soft copy. There are also generic email addresses.
9. In cross-examination, Mr Muhammad said that there were no performance issues that he was aware of for Mr Jemal.
10. The change to level 3 arose following a review. Some duties remained at level 4 for a short period, so not all staff were reduced at the same time.
11. Mr Jemal wears headphones all the time.
12. He speaks English and other languages. Usually when Mr Jemal was offered overtime he would decline it.
13. Mr Jemal said he was paid less than others. He was surprised about this.

1. Mr Koumantaros gave evidence including the following:
2. He could not recall receiving an email from Mr Jemal in September 2012 in relation to the airport. His recollection is that Mr Jemal was temporarily placed at 477 Collins Street. He deals with hundreds of employees. He could not recall whether Mr Jemal was placed for an interview at the airport or whether he had a sensitivity to perfume. He denies that he would have told Mr Jemal to resign, he would not say such a thing.
3. His recollections are more general than specific. He had feedback from other supervisors about Mr Jemal's argumentative behaviour but didn't follow it up with Mr Jemal. He recalls him being upset at one stage. He did not take the matter further as he thought Mr Jemal's conduct was understandable.
4. In cross-examination, he said that he is not saying that what Mr Jemal said is untrue, he is just saying that he cannot recall the specifics.

1. Mr Trifilo's evidence was given by way of a statutory declaration. In this he states that Mr Jemal is a friend and that is why he did not appear at the Tribunal to give evidence.
2. He attests that Mr Jemal would often discuss his perceptions that he was being treated unfavourably. He suggested that Mr Jemal should not overanalyse interactions.
3. He did not exert any influence over Mr Jemal and was not affected by a former employee when he was working at 242 Exhibition Street.
4. ISS had trouble ordering uniforms, but this affected everyone not just Mr Jemal. He did not force Mr Jemal to keep his top button fastened.
5. ISS lost a contract at 242 Exhibition Street and Mr Jemal was offered "ad-hoc" work" as were a number of other staff. At this time Mr Jemal attended a number of interviews. Mr Jemal was unwell and supervisors reported back to him that Mr Jemal could be barely understood because of mumbling.
6. In November 2012, he told Mr Jemal that he had a full time work at Coles. Mr Jemal was unhappy with this job saying he should be working at a commercial company. He suggested to Mr Jemal that if he was unhappy with the work that Mr Jemal could resign - this was not a threat. Mr Jemal later accepted the job.
7. He left ISS in December 2012 and is still a friend of Mr Jemal.
8. Mr Jemal would often take comments out of context and he interprets operational changes and interactions as personal attacks.
9. Mr Jemal disagreed with much of the content of this statutory declaration.

1. Mr Jemal alleges that he has been discriminated against by ISS. Section 8 of the EO Act [2] defines direct discrimination.
2. The elements that he must prove are:
   • That he has an attribute (as defined in the EO Act)
   • That he was treated unfavourably by ISS
   • That any unfavourable treatment was because of the attribute.
3. Mr Jemal need not prove that his attributes are the sole reason for any unfavourable treatment, it is enough to show that it was a substantial reason. Motive is also irrelevant.[3]
4. Mr Jemal has made allegations that ISS did not provide adequate clothing to meet his needs and that he was required to work outside in circumstances where a symptom of his disability was sensitivity to cold.
5. This raises the issue of whether ISS has discriminated against Mr Jemal on the basis of disability.
6. Mr Jemal also alleges victimisation.
7. Victimisation is prohibited by s. 103 of the EO Act and is defined in s. 104.[4]
8. The remedies available if there is a breach of the EO Act are set out in s. 125 of the EO Act. [5]

1. There is a burden of proof that applies in these cases. In this application, the burden rests with Mr Jemal as he is the applicant[6]. In lay terms this means that he that he must provide sufficiently detailed allegations and evidence to show that the alleged incidents occurred and that there has been a breach of the EO Act.
2. In this area of law, it is uncommon for a respondent to accept that the conduct complained of is discriminatory. The Tribunal is therefore called upon to make a judgement about whether the evidence supports an inference being drawn that the conduct is discriminatory. In this case the Tribunal must be satisfied that any inference is does make is reasonable.[7]
3. Where there are serious allegations of misconduct the Tribunal should also take into account the common law principles established in the case of Briginshaw v Briginshaw [1938] HCA 34.[8]

1. As previously stated, three elements must be satisfied.
2. Mr Jemal must prove that:
   • he has an attribute; and
   • was treated unfavourably by ISS; and
   • that any unfavourable treatment was because of the attribute.

1. The EO Act only deals with certain attributes. Mr Jemal was born in Ethiopia. The attribute of race applies.
2. He also produced on the final day of hearing a letter dated 5 November 2014 from Dr John Wentworth, Endocrinologist. This letter states that Mr Jemal had symptoms of hypothyroidism in early 2012, with symptoms developing over 2011. Symptoms included weight gain and intolerance to cold. Treatment was provided in 2012 and 2013 and he is now stable.
3. Disability is defined in the EO Act. [9] ISS did not deny that this condition is a disability and I am satisfied that Mr Jemal has this attribute as defined in the EO Act.

1. This term is not defined in the EO Act. Its ordinary meaning, as defined in the Macquarie Dictionary, is "not favourable, not propitious, disadvantageous, adverse".[10] It could therefore include harassment or bullying, being subjected to humiliation, being denied a benefit which is offered to others etc.
2. Mr Jemal has relied on numerous incidents where he claims he has been treated unfavourably. This is denied by ISS.
3. I will deal with each incident in turn.
   • Early October 2009 - instructed to check sanitary bins which was not part of his job description.
4. Mr Jemal referred this incident to the Commission in 2010. I cannot therefore consider it as part of this application (see para 12-14 of these Reasons)
   • 14 September 2011 - comment from Peter Bonello that he "looked like a gorilla" and accused him of being homo sexual
5. Mr Jemal said that while he was at Telstra Mr Bonello said that he looked like a gorilla and accused him of being homosexual. This was witnessed by another worker. He reported this.
6. It created a situation where he felt isolated.
7. Mr Bonello was not called. ISS did not deny that this incident occurred. In its written Defence dated 30 August 2014 it noted that it arranged for someone to speak with Mr Bonello and no further issues were raised by Mr Jemal. I accept Mr Jemal's evidence that this incident made him feel isolated and therefore that there has been unfavourable treatment.
   • 15 March 2012 - issue concerning provision of uniform.
8. Mr Jemal claims that he was targeted in relation to the inappropriateness of his uniform and the need for a uniform that better fitted and was not torn. I accept that there was a degree of humiliation attached to this and therefore that there has been unfavourable treatment.
   • 16 April 2012 - issues arising as a result of ISS's loss of contract at 242 Exhibition Street and availability and suitability to work at Melbourne Airport.
9. Mr Jemal claims that while he initially felt unable to work at the airport that he was refused this job without interview and without an explanation as to why he was unsuitable. He suggests that it was due to his race. He says that others were offered this job, but he was not. In my view this constitutes unfavourable treatment.
   • September 2012 - issues involving three applications for work at other locations and lack of explanation about why unsuccessful.
10. Mr Jemal stated that while he was waiting a permanent placement that he attended three other job interviews. One with Maroondah Hospital, one with Australia Post. He did not give details of the third. He said that he attended an interview with Australia Post and was found suitable but that ISS refused to offer him this position.
11. I found Mr Jemal's evidence on these points to be vague. There was no supporting evidence to substantiate his claims and I am unable to find that he was treated unfavourably in relation to these incidents.
    • 30 October 2012 - suggestion from former site manager that he should resign.
12. Mr Trifilo attested that he suggested Mr Jemal resign as it seemed there was no suitable work for him at the time. There is insufficient evidence to persuade me that in this context Mr Jemal was treated unfavourably.
    • 22 February 2013 - allegation that Supervisor asked him how to do black magic.
13. I have conflicting evidence from the persons involved in this interaction. Both gave sworn evidence and neither has any evidence supporting their version over the other. As Mr Jemal bears the burden of proof I cannot be satisfied that this incident occurred and that Mr Jemal was treated unfavourably.
    • 26 March 2013 - alleged threats in relation to roster.
14. Mr Jemal has claimed that he was treated unfavourably when rosters were drawn up or amended. He has not provided any evidence to illustrate or substantiate this claim. I do not see why this could not have been provided. Given the lack of evidence I am not satisfied that Mr Jemal was treated unfavourably.
    • 27 March 2013 - alleged racial slurs and use of the word "Ghulam".
15. For the reasons set in paragraph 102 I draw the same conclusion in relation to this incident. I am not satisfied that Mr Jemal was treated unfavourably.
    • 22 April 2013 - further issues regarding the roster and implication that he was a troublemaker and should resign.
16. As found above, Mr Jemal has not provided any evidence to illustrate his claim in relation to rosters. Even if I accept that Mr Topici suggested that Mr Jemal resign, this statement may well have reasonably been made in discussion about availability and rosters. Given the lack of evidence I am not satisfied that Mr Jemal was treated unfavourably.
    • 6 August 2013 - telephone call transferred so that other employees could listen.
17. For the reasons set in paragraph 102 I draw the same conclusion in relation to this incident. I am not satisfied that Mr Jemal was treated unfavourably.
    • 15 August 2013 - alleged lack of teamwork.
18. For the reasons set in paragraph 102 I draw the same conclusion in relation to this incident. I am not satisfied that Mr Jemal was treated unfavourably.
    • 27 August 2013 - alleged comment from second in charge that another worker was superior to him.
19. While Mr Panu concedes that he made reference to another worker having " a silver spoon in his mouth" he stated that there was no reason for Mr Jemal to be offended over this. He was not suggesting that Mr Jemal was inferior to this worker. I am not satisfied that this comment in itself is such that Mr Jemal has been humiliated or denigrated. Many comments are made in the day to day of working relationships. I am not satisfied that Mr Jemal was treated unfavourably.
    • 5 September 2013 - required to work outside and undertake tasks that could not be completed in a reasonable time.
20. For the reasons set in paragraph 102 I draw the same conclusion in relation to this incident. I am not satisfied that Mr Jemal was treated unfavourably.
    • 14 November 2013 - alleged threat from co-ordinator
21. For the reasons set in paragraph 102 I draw the same conclusion in relation to this incident. I am not satisfied that Mr Jemal was treated unfavourably.
    • Salary, Roster and overtime:
22. Mr Jemal's claims in relation to the issues raised under this heading were either not substantiated e.g. (under payment of wages for 12 months, lack of response from payroll in relation to wage enquiries, lowest paid employee despite eight years experience, bias and favouritism in relation to rosters and voluntary overtime) or were explained by witnesses e.g. (demotion from level 4 to level 3).
23. There is insufficient evidence to show that Mr Jemal was treated unfavourably in relation to these issues.
    • Working conditions:
24. Similarly, the claims in relation to working conditions are more akin to ambit claims. Those claims that deal with specifics are either not supported sufficiently by evidence or are reasonably explained by ISS.
25. There is insufficient evidence to show that Mr Jemal was treated unfavourably in relation to these issues.

Was Mr Jemal treated unfavourably because of an attribute?

1. I have found that the majority of the incidents referred to above do not show that there has been unfavourable treatment. They cannot therefore constitute discrimination.
2. There are three incidents that have satisfied this criteria. They are:
   • 14 September 2011 - comments from Peter Bonello that he "looked like a gorilla" and accused him of being homosexual
   • 15 March 2012 - issue concerning provision of uniform.
   • 16 April 2012 - issues arising as a result of ISS's loss of contract at 242 Exhibition Street and availability and suitability to work at Melbourne Airport.
3. The question to be addressed now is whether there is a causal link between the actions of ISS and the unfavourable treatment.
4. In relation to the first incident, Mr Jemal has suggested that the comments made were racially motivated. Mr Bonello was not called to give evidence and there is no sworn statement provided by him to rebut this suggestion. ISS made no submission on this point at the hearing. It contended that after Mr Bonello was spoken to, there were no repeat issues.
5. ISS has not offered an alternate rationale for Mr Bonello's behaviour. I therefore accept Mr Jemal's submission that he was treated unfavourably because of his race.
6. In relation to the second incident, ISS has said (this was confirmed in the evidence of Mr Trifilo) that it was having trouble re-ordering uniforms and that that this issue affected everyone not just Mr Jemal. This explanation appears reasonable and has not been significantly challenged by Mr Jemal.
7. I am therefore satisfied that there is no causal link between the actions of ISS and the unfavourable treatment.
8. In relation to the third incident, Mr Jemal has stated that, while he initially did not wish to work at the airport, he changed his mind and was offered an interview, but that ultimately he was not offered the job and was allegedly told that the reason for this was that he was a security risk.
9. Mr Koumantaros gave evidence and recalled the closing down of 242 Exhibition Street and the redeployment of staff. He reiterated during his evidence that he could not recall Mr Jemal's specific situation and in cross-examination stated that he did not dispute Mr Jemal's version of events, simply emphasising that he could not recall specifics.
10. He said that he would not have said words to the effect that Mr Jemal should resign.
11. Mr Koumantaros in his witness statement denied that he said that Mr Jemal was a security threat and could not work at the airport.
12. In its Statement of Response dated 12 May 2014 and its Defence dated 30 August 2014, ISS noted that Mr Jemal was employed at the airport between July and December 2006 and during this time ten performance advice letters dealing with issues such as absenteeism were issued as well as a number of incident reports. As a result he was transferred from the airport and for this reason was not redeployed.
13. Mr Jemal did not address or deny this explanation.
14. The evidence before me is disputed as to the conversations between Mr Jemal and Mr Koumantaros. There is no basis for me to accept one over the other.
15. ISS in its Tribunal documents has presented a viable explanation for why Mr Jemal was not redeployed at the airport. This has not been challenged by Mr Jemal.
16. I am therefore unable to find that any unfavourable treatment was as a result of discrimination.

1. Based on my findings above and applying the law to the relevant evidence I am satisfied that ISS has discriminated against Mr. Jemal in relation to one incident that occurred on or about September 2011.

1. I have already found that Mr Jemal was suffering from a disability, namely hypothyroidism. He alleges that he was treated unfavourably because of this condition in two respects. First when he complained that his uniform was too small as a result of swollen glands, a new uniform was not provided. Second he alleges that he was required to work outside in circumstances where a symptom of his disability was sensitivity to cold.
2. ISS submitted that Mr Jemal had not provided evidence that he had informed ISS of his disability and any consequential needs arising from the disability.
3. In order for unfavourable treatment to arise "because of" a protected attribute, in this case disability, ISS would need to be aware of this disability.[11]
4. Mr Jemal failed to provide clear evidence substantiating ISS's knowledge of his disability. Given this, I am not satisfied that there is evidence to show that Mr Jemal is being discriminated against on the basis of disability.

1. Mr Jemal alleged that he was the subject of victimisation as a result of his complaints to the Commission.
2. He alleged that he was sacked from his job as a consequence of his application to the Tribunal.
3. ISS submitted that there is no evidence to substantiate this claim of victimisation. To suggest that the decision to not offer him a role at Melbourne Airport was the result of his complaint to the Commission in 2010 is "a bridge too far" - no link could reasonably exist to support this suggestion. Similarly no evidence has been provided to substantiate the assertion that his deployment at Coles was a result of his second complaint to the Commission in 2012. Thirdly there is no evidence that termination of his employment is in any way related to the current application.
4. It was noted that alternate proceedings are underway in relation to a claim for unfair dismissal. Also the incident that gave rise to termination was on 7 December and Mr Jemal's application was lodged after this time. It was submitted that Mr Jemal has evidence in relation to his unfair dismissal claim and he could have led this evidence but chose not to.
5. As previously stated, the burden of proof in relation to these matters rests with Mr Jemal. The proposal that Mr Jemal makes is that he has been victimised as a result of two complaints to the Commission and his application to this Tribunal.
6. In my view the evidence provided does not support this proposal. There is no evidence to link the various incidents that Mr Jemal complained of to his actions in making complaints to the Commission. Similarly there is insufficient evidence to satisfy me that the termination of his employment was motivated by his application to this Tribunal. His initial application to the Tribunal was lodged on the 11 December 2013. Mr Jemal's employment was terminated on 20 December 2013.
7. While the Tribunal records confirm that ISS was sent correspondence acknowledging Mr Jemal's application dated 11 December 2013 there is no evidence about when advice was received and by whom or that the person(s) within ISS who made the decision to terminate Mr Jemal's employment were aware of this application.
8. I will therefore dismiss the claim in relation to victimisation.

1. In his original application, Mr Jemal has claimed the following remedies:
   • a full investigation of his complaint
   • the discriminatory behaviour to stop
   • compensation for discrepancies in pay amounts
   • reimbursement of medical expenses
2. Mr Jemal was asked and directed on various occasions, both prior to the hearing and during the hearing, to clarify the remedies that he sought as well as providing substantiation of those claims.
3. In a document tendered on the final day of hearing he outlined his claim as follows:
   • "$4200 in unpaid wages
   • $800 in under payment of wages
   • am still looking to get the exact amount of medical expenses as few doctors left Australia and other retired but I have attached their findings"
4. In evidence to the Tribunal Mr Jemal explained that the amount in relation to wages was for money that he had earned but not been paid. He said that he was unable to obtain evidence of his medical costs, however he estimated the cost of prescriptions as being approximately $200.
5. In relation to any other claim for compensation, he was not able to provide a financial figure for this. He claimed that he should be compensated for the alleged discrimination as he has suffered sleeplessness and depression. It has affected his well-being from 2009.
6. ISS submitted that Mr Jemal had made vague statements in relation to redress. No evidence had been provided in relation to the issue of wages. Mr Jemal had been put on notice during directions hearings and the hearing that he required evidence to support his claim for medical expenses and these had still not been provided.
7. In relation to general remedies, the extent of any unfavourable treatment, if any, is at the lower end of the spectrum. If Mr Jemal was found to be successful any order for compensation should be at the lower end of the scale.

1. The first remedy sought is a full investigation of his complaint. While the Tribunal has no role in relation to investigation, the hearing has given Mr Jemal the opportunity to present the relevant evidence to support his claim.
2. The second remedy is that any discriminatory behaviour to Mr Jemal stop. Mr Jemal is no longer employed by ISS so no order can be made to give effect to this claim.
3. There are two types of damages that can be awarded by the Tribunal. The first relates to economic or financial loss such as loss of wages or expenses such as medical costs.
4. The third remedy relates to claim by Mr Jamal that under payment of wages be reimbursed. He has quantified the outgoing as $5000.
5. Mr Jamaal was asked on numerous occasions to provide evidence to substantiate this claim and how he calculated the amount owing. He indicated that he was unable to obtain this information from ISS.
6. In the absence of evidence which can substantiate this claim and the link to any alleged discrimination there is no basis on which to allow the claim for reimbursement of wages.
7. The fourth remedy related to reimbursement of medical expenses. Mr Jemal was unable to provide any substantiation of these expenses and estimated that he spent approximately $200 on prescriptions.
8. To support his claim Mr Jemal provided a letter from the Millennium Medical Centre in Footscray dated 11 December 2009 which lists his current medications at that time. This letter indicates that he had a past history of insomnia and was referred for clinical psychological treatment.
9. Another letter dated 3 December 2014 from Dr S Smeeton certifies that Mr Jemal suffered from low mood and anxiety relating to his work situation and saw a clinical psychologist on 25 November 2011 and 3 February 2012. The letter notes that he was given a prescription for antidepressants on 8 December 2013 and 12 February 2014. The letter notes that Mr Jemal took the antidepressants for approximately 3-4 months.
10. Mr Jemal was unable to provide any evidence to substantiate the medical costs that he claimed. On the final day of the hearing he indicated that he had tried to obtain this information as " few doctors left Australia and others retired".
11. Given this lack of information, I am unable to quantify the medical expenses that could be said to have arisen from any discrimination by ISS. I therefore will not make an award in relation to this.
12. This Tribunal can also award general damages for non-economic loss, for example compensation for humiliation or a diagnosed psychological injury.
13. Mr Jemal was asked to quantify the amount he was claiming in relation to this. He did not provide a dollar figure and ISS submitted that if an amount was awarded it should be at the lower end of the scale.
14. There is one incident where I have concluded that ISS has discriminated against Mr Jemal. This relates to an incident by a fellow employee who by verbal communication humiliated Mr Jemal in his workplace environment.
15. Mr Jemal has maintained that the effects of discrimination in the workplace have led to insomnia, anxiety and depression. Substantiation of this claim is in part supported by medical evidence. However I have very little information about these conditions and their impact on Mr Jemal, there is also the possibility that these conditions have been caused by, or at least exacerbated by, other issues.
16. Mr Jemal has previously made a range of complaints to the Commission and it is clear from the evidence provided to this Tribunal that he has also made a large number of complaints to ISS in relation to the conduct of various employees at ISS. I note that while these complaints have been made, none have been taken before or proven in a court of law.
17. The purpose of an award of compensation has been clearly stated by the current President of the Tribunal.

"The purpose of an order under s 136(a) (ii) is to compensate the complainant for loss, damage or injury suffered in consequence of the contravention. Each case stands to be assessed on its own merit. An award of general damages should be made as appropriate for the individual case having regard to the facts and circumstances and the contraventions proved.

The principles which apply to the award of damages have been discussed in a number of leading cases.[63] Here the amount to be awarded is an amount the Tribunal thinks fit to compensate the complainant for the loss, damage or injury suffered "in consequence of" the contravention.

In I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd,[64] three judges of the High Court said as to the award of damages under other statutory provisions:[65]

There may be many acts or omissions that could be said to have contributed to the happening of an event. As has often been mentioned in learned articles on the subject of causation, the decision of a tortfeasor's great-great grandmother to have children can be identified as one factual cause for an event which is the subject of litigation. To search for the single cause of an event is, therefore, to pursue an illusion. And, much more often than not, to speak of the "effective cause" or the "proximate cause" (or to use some similar expression) is to hide important assumptions that are made, or conclusions that are reached, about the attribution of responsibility for particular kinds of act or omission. That is why it is necessary to understand the purpose for making some inquiry about causation. Only when the purpose of the inquiry is known is it possible to identify and articulate how and why some circumstances are extracted "out of the whole complex of antecedent conditions of an event" and identified by the law as a cause of it.

In light of these considerations, it is hardly surprising that it is now well established that the question presented by s 82 of the Act is not what was the (sole) cause of the loss or damage which has allegedly been sustained. It is enough to demonstrate that contravention of a relevant provision of the Act was a cause of the loss or damage sustained.[12]"

1. Whilst it could well be argued that the stress suffered by Mr Jemal can be attributed to a range of factors, as stated above, there is authority to support the conclusion that it is sufficient that a contravention of the EO Act is a cause of the loss or damage. I am satisfied that this is the case in these circumstances.
2. Mr Jemal maintains that the conduct of ISS has impacted his health and that he felt humiliated and isolated as a result of the discrimination. As previously stated, what is more difficult to assess is the degree of this impact on Mr Jemal.
3. ISS asserted that if an award for compensation was made, it should be at the lower end of the scale. No submissions were made about what the scale was.
4. I note the following comments made by the Tribunal in 2012 when assessing hurt and humiliation.

"The starting position in relation to awards for prohibited discrimination for injury to feelings (also referred to as non-economic loss), is that the amount should not be minimal, as that would trivialise or diminish respect for the public policy to which the Equal Opportunity Act gives effect. On the other hand, awards ought not be excessive, as that would also damage respect for that public policy."[13]

1. In the recent Federal Court case of Richardson v Oracle, Kenny J noted as follows: "... community standards now accord a higher value compensation for pain and suffering and loss of enjoyment than before."[14]
2. While this case related to claims of sexual harassment, Kenny J did note that the principle has broader application.[15]
3. In assessing the amount of compensation I have taken into account that the compensation is for one of the seventeen alleged incidents, Mr Jemal's evidence in relation to the effect of incidents over a period of time, the lack of medical and psychological evidence in relation to the impact on Mr Jemal, the relevant case law and the circumstances in this case. I will therefore set the appropriate amount of compensation at $3,000.

[1] S. 194 (2) A person may make an application to the Tribunal under Division 2 of Part 8 about an alleged contravention of a provision of Part 3, 5 or 6 of the old Act that occurred before the commencement day if -

(a) the person did not lodge a complaint under section 105 of the old Act about the alleged contravention before the commencement day; and

(b) the alleged contravention, if proven, would have also been a contravention of a provision of Part 4, 6 or 7 of this Act, if this Act had been in force when the alleged contravention occurred.

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

[3] s. 10 Motive is irrelevant to discrimination

In determining whether or not a person discriminates, the person's motive is irrelevant.

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

S. 104(1)(a) amended by No. 26/2011 s. 34(Sch. item 5.1).

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(c) has brought any other proceedings under this Act or the old Act against any person; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(i) would contravene a provision of Part 4 or 6 or this Part; or

(ii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

(4) In this section, "old Act "means the Equal Opportunity Act 1995 , as in force before its repeal.

[5] s. 125 What may the Tribunal decide?

After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may -

(a) find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders -

(i) an order that the person refrain from committing any further contravention of this Act;

(ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or

(b) find that a person has contravened a provision of Part 4, 6 or 7 but decline to take any further action; or

(c) find that a person has not contravened a provision of Part 4, 6 or 7 and make an order that the application or part of the application be dismissed.

1. [6] Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802.
2. [7] Drew v Whitehorse City Council (Anti-Discrimination) [2010] VCAT 372, relying on Morgan v Austin Health & Anor [2007] VCAT 2229, per Harbison J.
3. [8] Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322 at para 24

(b) the presence in the body of organisms that may cause disease; or

(c) total or partial loss of a part of the body; or

(ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; or

(e) malformation or disfigurement of a part of the body -

and includes a disability that may exist in the future (including because of a genetic predisposition to that disability) and, to avoid doubt, behaviour that is a symptom or manifestation of a disability;

[10] Macquarie Dictionary (5th ed, 2009)

[11] Tate v Rafin [2000] FCA 1582

[12] per Garde J paras. 273-275. GLS v PLP (Human Rights) [2013] VCAT 221

[13] Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049 at paragraph 83, relying on Hall & Ors v A & A Sheiban Pty Ltd & Ors [1989] FCA 72.

[14] [2014] FCAFC 82.