For the reasons I have set out above, I am satisfied that Ms Kumari was directed to take a week's annual leave because she had made the complaint about Mr Hussain's behaviour. I find that Ms Kumar was subjected to detriment when she was directed to take one week's annual leave from 14 August 2017 to 18 August 2017.
However, I am not satisfied that the extended period of leave taken by Ms Kumari from 22 August 2017 to 19 October 2017 amounted to being subjected to detriment because she had made a complaint about the behaviour of Mr Hussain. Ms Kumari was offered alternative employment at the toppings site. She declined to transfer to that position. I find that she elected not to return to work following the meeting on 22 August 2017, and I find that she elected to sign the annual leave application forms in order to continue to receive income while she was away.
[2]
Ms Kumari says that she objected to transfer to the toppings site because she was performing the role of Production Supervisor at the bakery site, and she would not have that role at the toppings site. Ms Kumari asserted that the transfer would therefore have been at a lower level.
Della Rosa denied that Ms Kumari was working as a Production Supervisor at the bakery site. The payroll evidence submitted by Della Rosa showed that Ms Kumari was paid as a Production Worker. She was not paid as Production Supervisor.
It may be that Ms Kumari was carrying out the duties of a Production Supervisor without being paid for these, however, it is not within the jurisdiction of this Tribunal to determine such a claim. Even though not receiving any higher payment, it is apparent that Ms Kumari felt pride in her perceived seniority and experience. She believed that she had been recognised as more experienced than her peers. She referred to a meeting at the bakery site in which she was asked to take on a leading role within her work group. Although Mr de Lorso and Mr Gonzales disagreed with Ms Kumari's claims, there is some strength in Ms Kumari's comment in the hearing, "I could not give the others directions if I had not been given the right to give those directions". Ms Kumari referred also to the fact that she had been provided with keys to the bakery site, which she believed was a privilege only granted to production supervisors.
Della Rosa relies on the payslips recording Ms Kumari's pay. The payslips, of themselves, while inconsistent with any formal supervisory responsibilities, do not negate Ms Kumari's perception that she had greater responsibility or autonomy in her role at the bakery site than she would have had at the toppings site. I find that the role Ms Kumari carried out at the bakery site, while not more highly paid, was, to her, a more satisfying role than the one she was offered at the toppings site.
The proposed transfer to the toppings site was, to Ms Kumari, negative treatment that occurred because she was a woman, Indian, and because she had made the complaint. Della Rosa asserted that Mr Hussain was also, subsequently, moved to the cheese making site, and there was therefore equivalent treatment of both Ms Kumari and Mr Hussain. Presumably, it would have been possible to produce payslips for Mr Hussain showing the change in location, but these were not provided. Applying the principle in Jones v Dunkel, I am entitled to infer that such payslips would not have assisted Della Rosa.[25]
On the evidence before me, I am not satisfied that the requirement that Ms Kumari transfer to the toppings site was a requirement that had or was likely to have, the effect of disadvantaging women.
However, because the transfer was proposed precisely because had made a complaint, and because it had the effect of requiring her to work in a role that, although remunerated at the same pay rate, was less satisfying, I find that Ms Kumari has been subjected to detriment because she had alleged contravention of the EO Act. Accordingly, I find that Della Rosa has victimised Ms Kumari within the meaning of section 104 of the EO Act.
[3]
Ms Kumari has claimed compensation for contravention of the EO Act. I have made findings that Della Rosa has contravened provisions of the EO Act, but the evidence and submissions of the parties did not address the question of the compensation, if any, that should be awarded to Ms Kumari for loss, damage or injury suffered in consequence of those contraventions. These orders extend the time for provision of submissions on detriment.
[4]
[1] Second Reading Speech, Hansard, Legislative Assembly, 10 March 2010, page 764, Attorney General Hulls.
[5]
[2]Equal Opportunity Act 2010 (EO Act) s 109 provides that employers are vicariously liable for the conduct of their employees that is in contravention of Part 4 or Part 6 of the EO Act.
[6]
[3] Although the EO Act refers to "he or she", Interpretation of Legislation Act 1984s 37 provides that words in an Act or regulations importing a gender include every other gender, and, accordingly, it is appropriate to use the pronoun "they" here.
[7]
[4] Affidavit of Ricardo Gonzales dated 15 February 2019, paragraph 7.
[8] Counsel for Della Rosa drew my attention to the remarks of Mansfield J in Piniatowska v Hickinbotham[2009] FCA 680 at [294], a decision under the Sex Discrimination Act 1984 (Cth) (SDA), where His Honour referred to conduct of a sexual nature as being "conduct which invites... participating in sexual behaviour..." I note that, in making that comment, Mansfield J was distinguishing this from conduct involving "the conveying of an instruction ... not to engage in sexual harassment... in coarse and sexually explicit language...". The facts in this proceeding are not comparable to that case, and it is not at all certain that the point made by Mansfield J in 2009 is apt in 2019. In any event, the scope of the term, as it is defined in the SDA, differs significantly from the definition in the EO Act.
[19]Slattery v Manningham City Council[2013] VCAT 1869 at [53]. Although consideration of the treatment afforded to relevant others, may be informative, particularly where it is not clear whether the treatment is unfavourable.
[21] The text message was not submitted in evidence by either party.
[23]
[22] Letter, erroneously dated 8 August 2017, but sent on 8 September 2017, Attachment ED2 to the Witness Statement of Emilio de Lorso dated 14 February 2019. According to that letter, Ms Kumari had leave credits that would permit her to remain on leave until November 2017.
[24]
[23] I deal with Ms Kumari's assertion that she would lose the status of being a Production Supervisor below.
[25]
[24] Attachment ED-1 to the Witness Statement of Emilio de Lorso dated 14 February 2019, Exhibit R3.