ACT Civil and Administrative Tribunal|2011-09-15

WSOL & JOHN JAMES MEMORIAL HOSPITAL (Discrimination) [2011] ACAT 81 (15 September 2011)

WSOL & JOHN JAMES MEMORIAL HOSPITAL (Discrimination) [2011] ACAT 81

List of legislation: ACT Civil and Administrative Tribunal Act 2008, s 9

List of cases: De Dominico v Marshall [2001] FCA 135; (2001) 107 FCR 11

Jackson v Sterling Industries [1987] HCA 23; (1987) 162 CLR 612

Ex-tempore Reasons for Decision: 15 September 2011

These reasons for decision relate to a complaint referred to the then Discrimination Tribunal by the ACT Human Rights Commission under section 53 of the Human Rights Commission Act 2005. The referral was made initially in April 2008. There was a hearing before the Discrimination Tribunal, an appeal in respect of that hearing to the Supreme Court and a referral back to this tribunal for rehearing.
The rehearing occurred on 11 November 2009. I am satisfied that the transitional arrangements contained in the legislation that gave effect to the abolition of the former Discrimination Tribunal and the establishment of this tribunal, have the effect of empowering this tribunal to consider and determine the referral even though it occurred before this tribunal was brought into existence.
The tribunal regards complaints referred to it by the Human Rights Commission as applications made to the tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008. The complainant becomes the applicant for the purpose of the proceedings before this tribunal. In this case, the applicant is Ms Lolita Wsol. The respondent is the entity she complained to the Human Rights Commission about, John James Memorial Hospital.
The events that led to the referral are as follows:

(i) On 12 November 2004 Ms Wsol sent an application letter to John James Memorial Hospital, (the respondent) seeking employment.

(ii) On 1 December 2004 she commenced employment with the respondent as a casual catering assistant.

(iii) On 11 July 2005 her employment status changed from casual to full-time.

(iv) In December 2005 she was promoted to the position of supervisor.

(v) On 19th or 20 December 2006 she stopped working in circumstances that are disputed.

(vi) On 9 March 2006 she completed a worker's compensation claim seeking compensation for psychological injuries she alleged were caused by incidents in the workplace. She took a period of leave.

(vii) On 4 May 2006 she was made redundant. She signed a Deed of Release in relation to the redundancy.

(viii) On 31 October 2006 she signed a further Deed of Release in relation to her worker's compensation claim.

(ix) On 22 November 2006 she received a payment of $12,000 in settlement of the worker's compensation claim.

(x) On 2 October 2007, approximately 11 months later, she lodged a complaint with the Human Rights Commission alleging that the respondent had discriminated against her.

The complaint was closed by the Commission on 11 April 2008 and subsequently referred to this tribunal. It is helpful at this point to clarify some aspects of the tribunal's powers in relation to its discrimination jurisdiction.
This tribunal and the former Discrimination Tribunal are tribunals created by statute. They are sometimes called creatures of statute. It is well established that such tribunals only have the power to do things that a law authorises them to do. The tribunal can only hear applications about, take actions in relation to, and make orders that a written law expressly authorises it to do.
Tribunals may also make orders and do things that are by implication necessary to give effect to an express power, but the tribunal must always be able to ultimately ground its actions, its decisions and its orders on an express statutory power[1].
There are three laws that give the tribunal express powers in relation to this application. They are the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the Discrimination Act 1991 and the Human Rights Commission Act 2005.
The tribunal can hear and determine the complaints that these laws say it can hear and make orders that these laws say it can make. When this case started section 53 of the Human Rights Commission Act said that the Human Rights Commission could refer a complaint to the Discrimination Tribunal.
Section 77 of the Discrimination Act said that the former Discrimination Tribunal could hear that complaint. Section 99 said that after the hearing, if the tribunal is satisfied that the respondent had engaged in unlawful conduct, the tribunal must make one or more of the orders set out in section 99(3) of the Discrimination Act.
Although the laws changed when this tribunal commenced in February 2009, the new laws were the same and they remain the same today. It is now section 53A of the Human Rights Commission Act that says that the Human Rights Commission can refer a complaint to this tribunal.
Sections of the ACAT Act require the tribunal to hear the complaint that is referred to it. Section 53E of the Human Rights Commission Act sets out the orders that the tribunal must make if it is satisfied that the respondent has engaged in unlawful conduct under the Discrimination Act.
Section 53E relevantly provides:

53E Kinds of orders - unlawful acts under the Discrimination

(a) the commission refers a complaint to the ACAT under this

(b) the ACAT is satisfied that the person complained about

(2) The ACAT must make 1 or more of the following orders:

(a) that the person complained about not repeat or continue the

(b) that the person complained about perform a stated reasonable

act to redress any loss or damage suffered by a person because

(c) unless the complaint has been dealt with as a representative

complaint - that the person complained about pay to a person a

stated amount by way of compensation for any loss or damage

suffered by the person because of the unlawful act.

It is important to be clear about what this application concerns and about what the tribunal can decide. In her written closing statement, Ms Wsol asked the tribunal to consider whether the respondent was guilty of a breach of trust in relation to her contract of employment because the respondent failed to provide her with a safe working environment. She also wrote about nonfeasance of duty of care.
In a statement prepared for the first hearing, Ms Wsol said that she would like the respondent to be publicly shamed and to be penalised by the tribunal for criminal negligence in the workplace.
In that statement she also said this:

My real anger and depression, physical debilitation, constant pain is because the management were negligent in protecting me when I repeatedly complained to the kitchen managers and senior management did not even give me a written protection when I asked for it.

They also discriminated against me by moving me from one workplace to another instead of the staff who caused the disabilities I now suffer. Nor did they give them redundancy. Instead, they were given the benefit of the doubt even though they knew I was a good worker, promoted to supervisor with excellent workplace records.

Ms Wsol made several statements about her desire that the tribunal make orders concerning a breach of her employment contract and negligence. But the case before the tribunal is all that we have the power to deal with. It is a referral of a complaint made under the Discrimination Act. The tribunal cannot deal with the referral as an application about a breach of contract of employment, or a breach of a duty of care owed by an employer to an employee.
The tribunal cannot deal with the referral as though it is an application about criminal negligence in a workplace.
We have no power to make orders penalising an employer for any act that could be described as criminal negligence. We have no power to undertake a broad ranging inquiry about what happened to Ms Wsol when she worked for the respondent and to make orders in response to whatever findings we make.
We are limited to the complaint referred to the tribunal by the Human Rights Commission. To the extent to which Ms Wsol's submissions and presentation to the tribunal request that the tribunal respond to a breach of her contract of employment and negligence, we are unable to make orders to assist her.
The aspects of the complaint that we can deal with need to be carefully analysed. The complaint was made by Ms Wsol using a standard Human Rights Commission complaint form dated 2 October 2007. The complaint is made about the respondent. It was not a complaint that referred to the actions of individuals.

The complaint was interpreted by the Human Rights Commission, correctly in my view, as a complaint of direct discrimination by the respondent employer against Mrs Wsol based on her race, and a complaint of victimisation by the employer on the basis of the complaints made by Ms Wsol. The complaint form is well summarised in a letter written by the Human Rights Commissioner to Ms Wsol on 11 April 2008.

"You allege the following; in March, April or May 2005 the supervisor, Raylee, said to you 'All you fucking Asians are taking away our jobs from us'. You also tell me that when you were the night-shift supervisor working on the food tray line the other girls had teased you about how you pronounced words. They all laughed at you when you sounded the different vegetable names.

They confused with 'peas' with 'please' when you said it and said to you, 'We don't understand the sounds.' You were ordered by JJMF to return to work in the same area where the person who assaulted you was still working and when you refused you were made redundant which you believed occurred because JJMF wanted to rid themselves of the problems regarding your complaint."

The Commissioner said that she interpreted this as a complaint of race discrimination and that in order to find that the complaint was made out, she would need to be satisfied that Ms Wsol was treated unfavourably by her employer because of her race.
The Commissioner also indicated, that in order to establish a complaint of victimisation, Ms Wsol would need to show that she was subject to a detriment or an unfavourable act because she made a complaint about discrimination. The unfavourable act identified by the Commissioner (although I think the complaint potentially raises others) was the act by which Ms Wsol was made redundant.

This is the complaint that was referred to the tribunal by the Human Rights Commission on 23 April 2008. These are the only matters that should have come before the tribunal for consideration in November 2009.

On 1 September 2009 lawyers assisting Ms Wsol lodged a statement setting out the facts and contentions relied on to support her complaint.

The statement was supported by an affidavit made by Ms Wsol on 28 August 2009. These documents expanded the matters the tribunal was asked to consider beyond the matters referred to in the original complaint by including complaints of direct discrimination by employees. The statement of facts and contentions set out the complaints, in summary, in this way:

(i) the respondent's employees directly discriminated against Ms Wsol by treating her unfavourably because of her race;

(ii) the respondent's employees unlawfully vilified the applicant because of her race;

(iii) the respondent's employees are representatives of the respondent. The conduct complained of was within the scope of their actual or apparent authority;

(iv) In accordance with section 121A of the Discrimination Act the respondent is liable for the conduct of its employees. The respondent did not take all reasonable steps to prevent its employees from engaging in the conduct;

(v) the respondent directly discriminated against Ms Wsol by allowing a culture of discrimination and vilification at its workplace. This culture caused significant distress and damage to the applicant;

(vi) the respondent victimised the applicant for making complaints about the conduct of the respondent's employees when it made her redundant.

The respondent's written response did not directly address the expanded complaint for the simple reason that the response was filed some 12 months before the applicant's statement of facts and contentions.

However, the hearing proceeded on the basis of the expanded statement of facts and contentions with the respondent calling evidence about and making oral submissions on the expanded grounds. The respondent's case in summary was as follows;
- (i) the things that Ms Wsol says other employees said to her and did to her did not happen;

(ii) if the tribunal found that the things did happen, they were not done or said with the respondent's actual or apparent authority and do not constitute conduct that the respondent can be said to have engaged in pursuant to section 121A of the Discrimination Act;

(iii) the respondent took all reasonable steps to prevent its employees engaging in discriminatory conduct by having appropriate policies and procedures in place and by taking action to move Ms Wsol away from the area she complained about once her complaint was brought to the employer's attention;

(iv) there was no direct discrimination by the employer towards Ms Wsol because of her race and no unfavourable treatment of her because of her race. The act of redundancy was not an act of victimisation, but rather was a consequence of financial difficulties the respondent was experiencing at the time;

(v) Ms Wsol has already been compensated for the injury and damage she alleges she suffered as a result of the conduct complained of, by her worker's compensation claim;

(vi) Ms Wsol is barred from bringing this application because of the Deed of Release she signed in settlement of her worker's compensation claim on 31 October 2006. Paragraph 3 of the release is as follows: "The releaser releases the releasee from all actions, causes of actions, suits, claims, debts, damages, costs and demands at law or in equity or under any statute whether past, present or future and whether made by the releaser or persons acting on the releasor's behalf in any way arising out of the injuries."

The parts of the complaint that allege direct discrimination and vilification by employees and seek to attribute a representative liability to the respondent are, strictly speaking, outside the scope of the matters referred to the tribunal by the Human Rights Commission. They are not matters that this tribunal can, strictly speaking, deal with in these proceedings
The limitations of the tribunal to deal with complaints referred by the Human Rights Commission has been dealt with in a number of other matters and in particular in the earlier decision of De Dominico v Marshall [2001] FCA 135; (2001) 107 FCR 11. I have however considered the whole of the evidence put before the tribunal. The conclusions reached about the evidence effectively deal with the broader allegations and the broader complaints.
The authorities are clear that the onus of proving a complaint under the Discrimination Act rests on the complainant.
Ms Wsol is required to produce evidence to the tribunal that will establish on the balance of probabilities, that each element of her complaint is made out. A finding that a party has failed to discharge the onus of proof does not necessarily mean that the tribunal has rejected the evidence of that party or that the tribunal does not believe the evidence of the party. It means no more than that the evidence is not sufficient to establish what is needed to prove the case.
1. The applicant's evidence in this matter was set out first, in her statement dated 28 August 2009 and secondly, in the oral evidence she gave before the tribunal. In summary, her evidence is as follows:

(i) that from the very early days of her employment with John James Memorial Hospital she believes she was subjected to racist taunts and racist behaviour.

(ii) Her early morning supervisor, was required to train her. When Ms Wsol asked for assistance she was, on a couple of occasions, yelled at by the supervisor. The supervisor refused to assist her. Ms Wsol formed the view or belief that this occurred because of her race and her colour. When asked a question about that, she indicated that she formed the belief because she felt as though Ms Campbell's refusal to assist her was based on race.

(iii) In March 2005 Ms Wsol was asked by the supervisor to work slowly as a protest in relation to understaffing issues. Ms Wsol indicated she would not do that. She says the supervisor said to her, "All you fucking Asians are taking our jobs away from us,"

(iv) The supervisor continued to call her racist names and often referred to her in a nasty or a mean way, talking of her as being Asian or black. Towards the end of June 2005 Ms Wsol says that another co-worker, a Ms Anna Boyce, hit her and pulled at her ear until her earring came out and used obscene and offensive language towards her including calling her, "a fucking tart", "a fucking cunt" and "a fucking slut".

(v) In July 2005 Ms Wsol said she complained about this behaviour to her then manager and to a Mr Michael Widley and to two other people. She asked them to stop Ms Boyce's behaviour. She didn't believe that anything was done in response to her complaints.

(vi) In August 2005 another worker, called Rosie, also spoke to her in an offensive way. Her evidence was that in this particular incident Rosie ran at her calling her "a fucking bitch", "a fucking black mole" and saying "I will kill you". She said that this was witnessed by Mr Widley and by Ms Aquilina Naciemento and a number of other co-workers. She says that she and Rosie were taken into a meeting to talk about what Rosie had said. The meeting was attended by Ms Naciemento

(vii) Rosie continued to abuse her. Nothing was done to stop that abuse.

(viii) In September 2005, Anna Boyce intentionally threw a container of water at her. This was witnessed by others and the people present laughed at her.

(ix) In November 2005, when she became a full-time supervisor, she believed that a lot of the other workers resented that she had been given this role, and that that resentment related to her race.

(x) She said that a number of people for whom she was responsible for would not take instructions from her but would from other supervisors.

(xi) There was a further assault by Anna Boyce on 29 December 2005 witnessed by two other people.

(xii) In early February 2006 an incident occurred in the kitchen premises with three other people, Shaun, a Julia and Angela.

(xiii) Ms Wsol said that the three started to look and laugh at her They were laughing at the way she pronounced particular words. Things came to a head on 19 February 2006 when she asked two co-workers to help her with the dinner shift. They refused. She became very distressed by their refusal and had a physical reaction to what had happened.

(xiv) When she attempted to call a manager for extra assistance, Shaun Coote blocked her way and told her that she had no right to call anyone. She managed to get past Mr Coote, and call the manager while she was having a panic attack. She described that she became physically unwell with episodes of vomiting.

(xv) On the following day, 20 February 2006 she reported the incident to a manager, Mr Arthur. He said that he would speak to her the next time she was rostered on. On 22 February 2006, Mr Arthur told her that he had spoken with the various people involved and that they had denied what she had said, Ms Wsol said that Mr Arthur's indication to her was that because there were seven of them and only one of her, it was all right for the co-workers to treat her in the way that she had complained about.

(xvi) She became very upset. She immediately took sick leave which became an extended period of leave. In her statement she described various counselling and doctors' appointments that she attended. She returned to work on 4 April on reduced hours, with new duties in the laundry. On 19 April she was told there was no longer work for her in the laundry. She was referred to Mr Arthur to undertake some clerical and administrative duties.

(xvii) She said there was an incident during which Mr Arthur yelled at her, saying, "Can't you read English?" as a result of her asking him about how he wanted some documents to be filed. She believed those comments were made because of her race. She became so upset by those comments that she was taken to see the Director of Financial and Corporate Services.

(xviii) She was told she would need to return to kitchen duties. This terrified her because these were duties involving the people who said had verbally and physically attacked. She requested that the Director of Financial and Corporate Services give her a written guarantee that she would be protected from bad treatment by the kitchen staff. This was refused.

(xix) She was encouraged to take annual leave. She did so and then went on a period of extended sick leave. She was presented with a deed relating to the redundancy. She says she did not understand the contents of the deed but acknowledges that she knew that she would receive a sum of money and that her employment would end. She didn't understand the consequences of that.

(xx) She said that she telephoned her lawyer who did not review the document or explain it to her. She telephoned the union but was told that they couldn't help her. She felt very confused. She was distressed and emotional. She returned the deed unsigned. She said she was repeatedly told to sign it and then did so. She indicated she felt intimidated and pressured.

In her oral evidence she reiterated that she did not understand the redundancy deed. She gave detailed evidence about the steps that she took in relation to the redundancy deed, discussions she had about it and the advice that she received.
She was cross-examined at length about information she provided to the respondent when she first applied to be employed and during the recruitment and her interview process.
She agreed that a document she had submitted with her initial application for employment omitted a reference to a period of employment at Canberra Airport immediately before her employment with the respondent. The purpose of the cross-examination, as I understand it, was to show that Ms Wsol was not a truthful person.
It was put to her repeatedly that she had been suffering depression and low mood as a result of conflict in her work environment at the Canberra Airport and that she had omitted to provide this information to the respondent when they were seeking to employ her. Ms Wsol agreed that she omitted any reference to her employment at the Canberra Airport but did not agree that that was because she was trying to hide anything. She denied that her work situation at Canberra Airport caused any low mood or problems for her.
She acknowledged that her general practitioner had filled out a medical certificate for Centrelink at that time that said that she was suffering from an adjustment disorder and that things in her workplace were contributing to that. She said that her low mood had commenced when her car was vandalised. The main cause of her unhappiness and low mood immediately before her employment with the respondent was that rather than anything to do with what was happening in her workplace at Canberra Airport.
I didn't find any of this evidence of any particular probative value.
Ms Wsol was also cross-examined about the large number of people she alleged had participated in the various acts that she complained of.
She agreed that she had made no arrangement for any of these people to give evidence in the hearing before this tribunal. She said that she had not been able to locate these people and that she had been told by Calvary Hospital that these people were no longer in their employ.
She disagreed with the suggestion that she made broad ranging allegations against anyone and everyone she came across in her workplace.
In relation to the serious allegations that she made concerning Ms Boyce's actions towards her, she was referred by the respondent's representative to statements made by Ms Boyce denying that those things had occurred.
She agreed that Ms Boyce usually worked different hours from her and that there was only a short overlap of one hour when they were working at about the same time. Her response to Ms Boyce's denial of the things that she alleged, was to say that Ms Boyce was untruthful. She confirmed her version of events as accurate.
She agreed that there were a number of other workers of Filipino nationality in the workplace. She did not know if they had complained about any racial discrimination. She agreed there were people of Chinese nationality working in the kitchen and said that she believed that some of them, or perhaps all of them, had made complaints of racial discrimination.
She agreed that she had never referred her complaints to the union representative, Ms Naciemento, and explained this by saying that Ms Naciemento had been present when some of the incidents occurred. It was put to her that Ms Naciemento denied the things that Ms Wsol complained of and Ms Wsol said that Ms Naciemento was untruthful and that her evidence was false.
She confirmed the allegations she made in relation to Mr Sean Coote. She acknowledged she had read a statement made by Mr Coote and filed in these proceedings and said that she didn't agree with his statement.
She was asked about the signing of a Deed of Release in relation to her worker's compensation claim.
She agreed that there were negotiations and that she received advice from a lawyer. She said that she was pressured by her lawyer into signing the Deed of Release. She said that it was not explained by the solicitor to her. She said she attended a meeting with the solicitor and with her general practitioner and that the solicitor had shouted at her, insisting that she take the offer.
She signed the deed and the solicitor then quickly left the meeting.
Ms Wsol's only witness was a Ms Rogers who supported her during the hearing.
Ms Rogers impressed me as a woman who was genuinely interested in assisting Ms Wsol.
She had no direct evidence or knowledge of any of the matters complained of. She was, however, able to confirm that an attempt had been made to persuade one person who worked with the applicant during the relevant period, to give evidence on Ms Wsol's behalf. Ms Rogers said that the person was unwilling to give evidence because of her employment.
For the respondent, evidence was given Aquilina Naciemento, by Sean Coote and by Anna Boyce. Ms Naciemento confirmed her statement stated 12 November 2008 and made one correction to it. She was the union representative at the relevant time. She was one of four people of Filipino descent working with the respondent.
She said that some people had come to her with complaints about treatment in the workplace but that had not occurred in 2005. She confirmed that Ms Wsol made no complaint to her.
She said that she did not hear of any acts of violence towards or assault on Ms Wsol. She denied that she witnessed the matters that Ms Wsol complained of. She was asked a series of questions by Ms Wsol designed to demonstrate to the tribunal that she, Ms Naciemento, was unhappy or had experienced difficulties in the workplace.
Ms Naciemento denied this. She said that she had not resigned as the supervisor of the nightshift as Ms Wsol thought, but that a change in her personal circumstances meant that she could accept a change in her working conditions.
None of the evidence given by Ms Nacimento as a result of her cross-examination addressed the issues that the tribunal had to consider. I assessed Ms Naciemento as a truthful witness.
I am unable to explain the difference between Ms Wsol's evidence about her presence during the course of incidents of violence and Ms Naciemento's denial of that, but there was nothing in Ms Naciemento's evidence or the way in which she gave any evidence that would cause me to accept that she was untruthful.
Mr Sean Coote gave evidence. At the time of the hearing, Mr Coote was a chef at the hospital. He had initially been employed as a kitchen hand. He referred to and confirmed his statement stated 16 June 2008. He made minor corrections to it.
Mr Coote's evidence, insofar as it is relevant, amounted to a criticism of Ms Wsol.
He said that she had caused a lot of trouble from the start. He alleged that she was abusive and had often sworn at people. He said that he remembered that things got so bad that other workers signed a petition complaining about her. He had overhead her abusive discussions.
He recounted that he had heard people talking about going home because they were fed up with Ms Wsol and that he'd overheard many arguments between Ms Wsol and the staff she was responsible for. He said that he had not witnessed any physical fights involving her. He acknowledged that she was Filipino by background and spoke with a strong accent, but said that he had always clearly understood everything that she had said. He had never heard any criticism of her accent. In his written statement, he said that Ms Wsol was the initiator of all conflict in the area. In his oral evidence, he retracted that statement.
In his oral evidence he, in a way that Mr Andrews, for the respondent, described as frank and open, denied words that were alleged to have been used towards Ms Wsol. He denied that people ever refused to do what she'd asked. He denied that he had ever witnessed physical assaults or that he had heard any verbal assaults or abuse directed towards her.
When asked further about the petition, it became evident that Mr Coote's written statement was disingenuous. It gave the impression that he was a bystander; an observer rather than an active participant, in anything that had happened in the workplace.
It was clear, however, that he had a major role to play in the preparation of the petition and putting it forward. The petition wasn't before the tribunal but Mr Coote described it as a petition complaining about Ms Wsol's behaviour.
I did not find Mr Coote's evidence helpful, persuasive or frank. I think that he was, as I said, disingenuous and his loading up of complaints against Ms Wsol painted a picture of a workplace that involved a lot of tension and conduct that could be described as abusive.
Ms Boyce gave evidence by telephone. She also made a statement dated 26 June 2008. She confirmed it as true. Ms Boyce's evidence was such that she could have been describing a completely different workplace from the one that Ms Wsol and Mr Coote described.
She denied that she had ever assaulted Ms Wsol, or that she had used offensive or abusive language towards Ms Wsol. She said that Ms Wsol used to regularly swear at other people. She denied that she had ever heard anyone referring to Ms Wsol as being Asian or speaking about her in terms of her colour.
She specifically denied using the language that Ms Wsol alleged, "a fucking tart", "a fucking slut", "a fucking cunt". She denied using such language generally. She said that she had never heard any of that sort of talk in the kitchen. She denied throwing a container of water at Ms Wsol but did describe an incident during which she was spraying out the scullery and Ms Wsol was hit by back spray from the hose. She denied that she had whacked Ms Wsol on the forearm or that she had seen or observed any other people knocking Ms Wsol, or abusing her in any way.
The workplace described by Ms Boyce was quite different from that described by Mr Coote. When I put that to her, she insisted that she never heard abusive language or used abusive language herself. She did say, under cross-examination by Ms Wsol, that many people, complained about how rude Ms Wsol was to them.
That was all of the evidence before the tribunal.
Ms Wsol was nervous about whether she would be able to adequately provide the tribunal with a closing statement. She provided a written statement but also spoke. She presented her case well.
She acknowledged that the respondent had a code of conduct of about how people should behave towards each other. It was her view that the code had been breached and that management had not complied with the code by responding appropriately to her complaints.
She said that Mr Coote's evidence was full of lies. She explained his motivation for lying as related to his on-going employment by the respondent. It would not be beneficial to him to do anything other than to support the respondent.
In his closing submission, Mr Andrews urged me to draw a conclusion that Ms Wsol lacked credibility and that she was willing to say whatever suited her in order to get the outcome that she sought. He asked me to draw that inference from the evidence before the tribunal in relation to her initial application for employment with the respondent and her deliberate omission of any reference to her earlier employment at the Canberra Airport and the reason for leaving that employment.
Further, Mr Andrews relied on the two deeds signed in May 2006 and October 2006 as a bar to any claim made under the Discrimination Act. Further, he submitted that the worker's compensation claim was made for the same injuries in respect of which compensation was sought under the Discrimination Act.
The Tribunal had copies of medical reports that were obtained for Ms Wsol's worker's compensation claim. The reports showed that compensation was paid to Ms Wsol for the same injuries, about which she was complaining in the discrimination claim. He submitted that it would be incorrect of this tribunal to provide further compensation for the same thing. That would be providing her with double compensation for the injuries.
He asked me to draw a conclusion that as none of the people identified by Ms Wsol as being present at and witnessing incidents she complained of, gave evidence; there was no evidence that they could give that would be helpful for Ms Wsol's case.
Further, he said that if I was satisfied that the matters she complained of had occurred, that these matters were not incidents that I could be satisfied were within the apparent or actual authority of the individual workers. He urged me to find that the complaints were fabricated.
In relation to the allegation of victimisation, he said that I could not be satisfied that the offer of redundancy was made to Ms Wsol on the basis of her race or because she had made complaints. He noted that Ms Wsol had not provided any evidence that other people had not been offered redundancies.
He noted that she had acknowledged that it was well-known that at the time of the offer of the redundancy, the respondent was facing some financial difficulties. He urged me to find that each of the witnesses called in support of the respondent were truthful.
My assessment of the evidence is mixed. I am not prepared to go so far as to find that Ms Wsol's evidence was fabricated. However, I cannot be satisfied that her evidence establishes to the necessary standard of proof that the things she complained of occurred.
I formed the view that there was tension, unhappiness and disagreement in the workplace. I am not satisfied that any of that tension, unhappiness or disagreement was related to Ms Wsol's race, was connected to race, or that she was treated in any way unfavourably, or was vilified by her work colleagues because of her race.
The witnesses each described Ms Wsol as having a work style and a style of supervision, that others found overbearing. They attributed any unhappiness to those aspects of her personality rather than to her race.
It is necessary for Ms Wsol to demonstrate a causal connection between the treatment she complains of and race for this tribunal to be satisfied that there was discrimination or vilification. Her evidence is not sufficient to discharge the onus of proof. I am also not satisfied on the balance of probabilities that the actions taken by the respondent towards her were motivated by her race.
There is nothing in Ms Wsol's evidence that connects the actions of the hospital to any racial motivation. I am not satisfied that the redundancy was an act of victimisation made because Ms Wsol made a complaint. I acknowledge that the timing of the redundancy offer is suspicious. That is not sufficient by itself for me to be satisfied on the balance of probabilities that the redundancy was offered to Ms Wsol as an act of victimisation.
The respondent proffered other reasons, namely financial difficulties, for the redundancy.
In the absence of some further information or documentation, I accept that the explanation given for the redundancy is plausible. I want to make two final comments in relation to the deeds of release and to the amount paid to Ms Wsol by way of compensation for her Worker's Compensation claim.
Section 53E of the Human Rights Commission Act gives the tribunal a power to make an order that a person be compensated for any loss or damage suffered as a result of the conduct complained of. That order can be made where the tribunal is satisfied that there has been some unlawful act. In this case, the evidence is not sufficient to be satisfied of that.
If it had been, and I was considering making an order for compensation, there would need to have evidence of the loss and damage Ms Wsol sustained as a result of the conduct she complained of.
Ms Wsol provided no evidence of her loss. The medical reports tabled as exhibits by the respondent, supported the view that the injuries that Ms Wsol complains of, were identical to those relied on in her worker's compensation claim.
There were no new or different injuries. There was no additional or different amount of compensation that could have been awarded to her under this complaint.
I do not need to decide whether the deeds of release bar Ms Wsol from bringing this complaint before the tribunal. I am of the view however that public policy
I do not base my decision on the deed of release but rather, on the sufficiency of the evidence brought to support the claims made by Ms Wsol.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] Jackson v Stirling Industries [1987] HCA 23; (1987) 162 CLR 612, Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at 241

Civil and Administrative Tribunal Act 2008

Rights Commission Act 2005

List of cases: De Dominico v Marshall

At a glance

Court

Decision date

Source

Judgment (82 paragraphs)

WSOL & JOHN JAMES MEMORIAL HOSPITAL (Discrimination) [2011] ACAT 81 (15 September 2011)

WSOL & JOHN JAMES MEMORIAL HOSPITAL (Discrimination) [2011] ACAT 81 (15 September 2011)

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Legislation Cited (2)

Cases Cited (3)