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[2001] VCAT 415
mixed. The complaint under section 14 based on impairment was found proven. The complaint insofar as it alleged discrimination based on sex and/or physical features was dismissed. The Tribunal reserved the...
VCAT found that Astrovac's decision to terminate Sharon Menzies' employment was substantially connected to her transsexualism. The Tribunal considered the employer's performance-based explanation against the evidence about her work, the Phillip Morris project and the failure to ask for her account before relying on a critical report. It held that, under the version of Victoria's Equal Opportunity Act applying to the events, transsexualism came within the attribute of impairment. It did not come within the statutory attributes of sex or physical features. The Tribunal found the impairment complaint proven and left the question of further orders for a later hearing.
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Sharon Menzies worked in the central vacuum-cleaning industry for many years before Astrovac acquired the business of Central Hivac. In late 1995, she told Astrovac managing director Richard Waycott that she intended to live as a woman. She started working at Astrovac in February 1996, presenting as Sharon Menzies, and the company knew of her transition plans when it hired her ([18]–[21], [27], [29]–[30]).
4 cited instruments linked from this judgment.
Her role was to develop industrial business and manage projects. The agreement for Astrovac's purchase of Central Hivac set an expected minimum sales target of $20,000 per month. The Tribunal found that Ms Menzies exceeded that target on average in 1996 and 1997, and that management recognised her sales and technical ability ([27], [40]–[45]). Her employment was not without tensions. The reasons describe her working environment as “variable” and record evidence of confusion and discomfort about her transition, including Mr Waycott's proposal that she return to living and dressing as a man in exchange for better pay and benefits ([62], [66]–[70]).
The central workplace issue was a contract to design and install a vacuum-cleaning system at Phillip Morris' Moorabbin plant. Ms Menzies managed the project and proposed a system using one large Hoffman pump. The project involved ongoing design discussions with Phillip Morris, which wanted an over-design margin and reviewed plans closely ([73]–[95]). Ms Menzies took leave from 12 March 1998 for sex reassignment surgery and recuperation. Mr Hicks took over the project. He favoured a different design, using four Siemens pumps, and reported to Mr Waycott that the contract was in a “parlous state” ([97]–[112]).
Mr Waycott relied on Mr Hicks' account when deciding to close the Industrial Division and terminate Ms Menzies' employment. The Tribunal found that Mr Waycott did not seek Ms Menzies' response to the reported problems, even though she had indicated she was available to discuss the project. It found that the decision to terminate had been made by 26 March 1998, while Ms Menzies was on leave ([118]–[127], [163]–[164]).
VCAT had separated liability from the question of remedies, with the parties' agreement. Its orders found the complaint under section 14 based on impairment proven, dismissed the allegations based on sex and/or physical features, and reserved the question of further orders. The heading identifies the matter as [2001] VCAT 415 and gives 31 March 2001, while the order and reasons are dated 14 March 2001.
The Tribunal's reasoning had two linked parts. First, it decided why Ms Menzies was treated as she was. Second, it considered whether transsexualism fitted a protected attribute under the version of the Equal Opportunity Act 1995 (Vic) applicable to the events.
On the reason for the treatment, the Tribunal did not accept that the Respondents' account of poor performance adequately explained the termination. It noted Ms Menzies' sales record and experience and that no evidence showed that Phillip Morris had complained to Astrovac about her work. The Phillip Morris representative, Mr Sacca, had an opportunity to criticise her performance but did not do so. The independent engineer, Mr Mathieson, considered the alternative design more modern and sophisticated, but said Ms Menzies' design would have met the specification as he understood it ([134]–[147], [159]–[162]).
The project evidence also mattered because the design changed after Mr Hicks took over. The revised approach involved different pumps, piping and electrical controls, and created costs that could not fairly be compared with the original quotation as if the project had remained unchanged. The Tribunal noted that Mr Waycott had specified the original price and that it had been based on a different project approach and a planned completion date ([77], [109]–[112], [154]–[157]).
Most important to the discrimination inference was the way the decision was made. The Tribunal found that Mr Waycott relied wholly on Mr Hicks' oral report, did not check the position with Mr Sacca or other relevant people, and did not ask Ms Menzies for her account. That omission was especially significant because she had phoned Astrovac shortly after surgery and indicated she was well enough to discuss the project ([121]–[125], [163]–[164]). The Tribunal compared her treatment with how it considered a non-transsexual employee in similar circumstances would have been treated. It used a hypothetical employee, John Smith, who was away for back surgery: it considered that management would have urgently contacted him to ask about project concerns ([170]–[172]).
For statutory coverage, the Tribunal rejected the claims based on sex and physical features. It read “sex” as the state of being male or female, and considered that transsexualism was not encompassed by that attribute. It read “physical features” as concerning bodily characteristics in their ordinary sense, and found the treatment was based on transsexualism rather than a physical feature as the Act defined it ([192]–[205]).
The impairment issue turned on section 4, which included a “malfunction of a part of the body” and, within that, a “mental or psychological disease or disorder”. The Tribunal considered Dr Bower's evidence that transsexualism had a biological basis and psychological manifestations. It concluded that the dissonance between physical sex and a person's sense of gender identity could come within the statutory language ([212]–[218], [225]–[230]). It also relied on the Act's purpose of promoting equality and eliminating discrimination, and on the principle that remedial legislation should be interpreted generously, within the fair meaning of its words ([177]–[180], [230]).
The judgment dealt with the law as it stood when Ms Menzies' employment ended in 1998. The Tribunal expressly said that the case had to be decided under the law then applicable, rather than by applying the later amendment that added “gender identity” as an attribute ([184]).
The Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 had come into operation on 9 October 2000, during the hearing. Its Second Reading Speech described the amendment as introducing gender identity and extending protection to people whose gender identity did not match their physical sex at birth. The speech referred to people who had undergone reassignment surgery, people seeking to live as a member of another sex without surgery, and people who temporarily adopted characteristics of another sex ([182]–[184]).
The amendment was relevant background, but it did not resolve the question for the earlier period. The Tribunal considered authorities about whether a later amendment can assist in construing an earlier enactment. It noted that a later provision may illuminate an earlier provision where the earlier language is ambiguous, but may also have been enacted to remove doubt. It then concluded that it did not need the 2000 amendment to interpret “impairment”, because it considered transsexualism already fell within the ordinary meaning of the earlier definition ([186]–[190], [232]).
Accordingly, the judgment's holding is tied to the former statutory wording and the evidence before VCAT. It does not decide how every later version of equal opportunity legislation applies, nor does it treat the new gender identity attribute as governing conduct that pre-dated its commencement. Its reasoning instead shows that, on the facts and statutory language before it, a person could succeed under the impairment attribute even though the later amendment separately addressed gender identity.
At [164], the Tribunal said: “basic fairness demanded” that the employer put its concerns about the project to Ms Menzies and seek her response before deciding to terminate her employment. In plain English, the omission to hear from her was not a minor procedural detail. It helped the Tribunal assess whether the performance explanation was credible and whether the treatment differed from what another employee would have received.
At [170], it concluded that it was reasonable to infer that Ms Menzies was treated less favourably because of her transsexualism compared with a person who was not transsexual in the same or similar circumstances. This is the core factual finding linking the treatment to the attribute.
At [172], the Tribunal said the Respondents' explanation that poor performance put Astrovac at substantial financial risk was “not credible on the evidence before the Tribunal”. This is a finding about the evidence in this case, not a general rule that performance concerns cannot justify employment decisions.
At [227]–[230], the Tribunal explained its construction of impairment. It treated transsexualism as involving a biological malfunction with psychological manifestations, and concluded that it fitted the statutory definition. The conclusion depended on the definition's wording, the evidence of Dr Bower and the Tribunal's approach to interpreting remedial legislation.
At [234], the Tribunal stated that Mr Waycott contravened section 14(b) by terminating Ms Menzies' employment on the basis of impairment, and that his act was an act of Astrovac. At [235], it separately found that Mr Hicks subjected Ms Menzies to a detriment through an inaccurate and damaging report, with Astrovac liable under section 102. The formal order, however, records the proven complaint as discrimination on the basis of impairment and reserves further orders.
The decision is most directly relevant to a claim under the same or materially similar statutory wording where a worker alleges that transsexualism was a reason for adverse employment treatment. The Tribunal's reasoning connected the attribute question to evidence about the employer's knowledge, the sequence of events, the decision-maker's process, the employee's work record, and the credibility of the stated performance explanation ([158]–[172]).
A particularly relevant pattern is one where management receives a serious report about an employee's performance but reaches a decision without asking the employee for an account, despite a practical opportunity to do so. In this case, the Tribunal considered that omission alongside evidence that Ms Menzies had offered to discuss the project and that the critical report contained an unbalanced account of the project's difficulties ([151]–[157], [163]–[164]).
The judgment also indicates the importance of examining the actual work and commercial context rather than relying only on a label such as “poor performance”. The Tribunal scrutinised the project's original design, later changes, contract administration, timing, client feedback and cost comparisons ([103]–[117], [129]–[157]).
The decision is not a general finding that every transsexual person is an impairment for every legal purpose or under every statutory scheme. It construed a particular definition in the Victorian Act, on the medical evidence and statutory materials before it. It also rejected sex and physical-features coverage under the provisions it considered. Later statutory amendments and different definitions require separate examination.
The supplied judgment does not describe any later court or tribunal's treatment of Menzies v Waycott. It would therefore be unsupported to say, from this source alone, that later courts have followed, distinguished, limited or overruled it.
The judgment itself says that the parties had not identified an Australian case deciding whether transsexualism came within the attributes at issue, and that the Tribunal was not aware of such Australian authority ([176]). Its discussion of other decisions concerned general matters of statutory interpretation, the civil standard of proof and remedial legislation, rather than precedent on the legal status of transsexualism under the Victorian Act ([7]–[8], [179]–[191]).
For research purposes, later treatment would need to be checked against subsequent judgments and the statutory amendments that followed. That later material is not included in the text provided here.
The Tribunal decided liability first and expressly reserved the question of what further orders to make. The reasons do not determine compensation or any other remedy ([11], [236]).
The precise reach of the impairment reasoning was not tested across different evidence or different statutory definitions. The decision rested on Dr Bower's evidence about biological basis and psychological manifestation, and on the wording of section 4 as then in force ([206]–[218], [225]–[230]). The Tribunal did not decide the issue on medical evidence from competing experts.
The decision also did not need to determine the complaint of indirect discrimination. It said that, given its conclusion on direct discrimination, it was unnecessary to examine the indirect discrimination contentions ([172]–[174]).
Finally, the reasons concern whether transsexualism fell within sex, physical features or impairment under the earlier Victorian Act. They do not determine the operation of the later gender identity attribute, the effect of later legislative changes in another case, or the treatment of discrimination claims under other Australian laws.
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Equal opportunity - complaint of discrimination in employment on the basis of the Complainant's transsexualism - whether Complainant's employment terminated on the basis of her transsexualism or due to poor work performance - whether transsexualism is covered by the attributes of "sex", "physical features" and/or "impairment" - Equal Opportunity Act 1995 ss. 4, 8 and 14.
SECOND RESPONDENT: Astrovac (Australia) Pty. Ltd.
1. The complaint that the Respondents contravened section 14 of the Equal Opportunity Act 1995, by discriminating against the Complainant on the basis of the attribute of impairment, is found proven.
2. In so far as the complaint alleges discrimination in contravention of section 14 on the basis of the attributes of sex and/or physical features, it is dismissed.
On the question of what further Orders the Tribunal should make, arrangements will be made for the Tribunal to deal with this further matter for the hearing of evidence and submissions.
For the Complainant: Mr M. Willoughby-Thomas, Barrister and Solicitor
For the Respondents: Mr A. McNab of Counsel, instructed by Russell Kennedy
1. The Complainant in this case is a transsexual. A transsexual is defined in Butterworths Australian Legal Dictionary (1997, p. 1185) as:
"A person born with the sexual characteristics of one sex but who feels that they are of the opposite sex. The person feels significant disharmony between his or her anatomical sex and gender identification. Often the person will try to bring his or her body into conformity with his or her feelings through hormone treatments and surgery: R v Harris (1988) 17 NSWLR 158 per Matthews J."
2. The Complainant was born a biological male. In middle age, the Complainant was referred to the Gender Dysphoria Clinic of the Monash Medical Centre ("the Clinic") for assistance. The Complainant, then Mr Ronald Menzies, was accepted by the Clinic into its program. After participating in the Clinic's program for over two years - during which period the Complainant adopted the name Sharon Menzies and lived and dressed as a female - the Complainant was accepted for sex reassignment surgery (from male to female). The surgery was carried out in March 1998. The surgeon who performed the operation subsequently wrote a "To whom it may concern" letter stating that Sharon Menzies had been his patient, that he had performed a sex change operation on his patient on 13 March 1998, and that "Sharon Menzies should now be regarded as a female". (Letter of Mr S. Ceber, Surgeon to Gender Dysphoria Unit, Monash Medical Centre, dated 21 July 1998, Ex. B, Att.3). In the context of this case, Ms Menzies is properly regarded as a transsexual female. The Respondents did not contest Ms Menzies' status as a transsexual, save in one regard (referred to later in paras. 216, 220(c) and 224).
3. The Clinic attended by the Complainant provides the following general information about its work:
"The clinic ... is a multi-disciplinary clinic involving psychiatrists, psychologists, plastic surgeons, gynaecologists, endocrinologists, speech pathology. It is the only formal clinic of its kind in Australasia and hence receives referrals from Australia, New Zealand and the Pacific Islands. ...
We provide an assessment service for patients with gender identity disorders and in particular we provide supervision and counselling for those who are suitable candidates for sex reassignment surgery. ...
For a patient to be accepted on to our program, they need to see the clinic director, Dr. Trudy Kennedy and at least one of the other psychiatrists associated with the clinic (Dr. Herbert Bower). Psychological testing is also performed and if the patient has already commenced hormones they are also seen by our endocrinologist, Dr. Anthony Hunter. We prefer patients not to have commenced hormones prior to being assessed by our clinic if possible.
If a patient is considered on our assessment to be a true transsexual who might benefit from reassignment surgery, then a minimum period of two years living full time in the chosen gender role with regular supervision by clinic members occurs. This `real life' test forms a significant part of the assessment in which we establish whether living in the chosen gender role does seem to be beneficial in the patient. It also allows any ambivalence to hopefully declare itself and be resolved and for the patient to be fully informed about the consequences of their choice prior to any surgical intervention.
During the two year period the patient has to continue on hormones and have regular endocrinological checks. If they are accepted for surgery they would be referred to one of our plastic surgeons for surgical assessment. ...
If surgical reassignment is achieved we are always keen to keep in touch with patients post-operatively and monitor their progress ...". (Exhibit C, Attachment 2, pp. 16 - 17).
4. The Complainant claims in this case that she was dismissed from her employment because of direct and/or indirect discrimination on the basis of her transsexualism, and that the termination of her employment was unlawful because it was in breach of s. 14(b) of the Equal Opportunity Act 1995 ("the EO Act"). The Complainant contends that one or more of the following attributes set out in s. 6 of the EO Act encompass transsexualism: "sex", "physical features" and/or "impairment". Direct discrimination is defined in s. 8 of the EO Act, and indirect discrimination is defined in s. 9.
5. The Respondents claim that Ms Menzies' employment was terminated because she was performing poorly on a large contract and putting her employer at considerable financial risk. The Respondents deny that Ms Menzies' transsexualism had anything to do with the decision to terminate her employment.
6. If she is to succeed, the Complainant must prove her case on the balance of probabilities. The task for Ms Menzies is to prove, on the balance of probabilities, that the Respondents subjected her to discrimination. While the Complainant contended that she was subjected to several instances of discrimination (under s. 14 of the EO Act) in relation to her employment with Astrovac, her most serious claim was that her employment was terminated as a result of unlawful discrimination. The case focussed on this claim and these Reasons pay particular attention to this claim. What must Ms Menzies do in order to prove her claim "on the balance of probabilities"?
7. In Miller v Minister of Pensions [1947] 2 ER 372 at 374, Denning J. (as he then was) spoke in the following terms of the degree of cogency which evidence must reach in order that it may discharge the legal burden of proving a case on the balance of probabilities:
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: `we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not".
8. When applying this standard, the Tribunal must take account of the fact that an allegation of discrimination on the grounds of sex, physical features and/or impairment in the area of employment, is a serious matter. If the claim is found proven, this may have an adverse effect on the reputation and standing in the community of the Respondents. This does not make the burden of proof heavier or different from that ordinarily applied in civil cases. It is, however, a factor to be taken into account. (See Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336 at 360 - 361 per Dixon J).
9. There are three questions for determination in this case:
(a) Was Ms Menzies' transsexualism a substantial reason for the decision to terminate her employment?
(b) If yes to (a), does transsexualism properly form the basis for a claim of discrimination under the EO Act?
(c) If yes to (a) and (b), what orders should the Tribunal make?
10. Regarding (b) above, the Complainant claimed that because the Respondents accorded her less favourable treatment on the basis of her transsexualism, they were engaging in unlawful discrimination based on one or more of the following attributes set out in section 6 of the EO Act: sex, physical features and/or impairment.
11. Regarding the questions for determination, I proposed at the start of the case that there may be merit in determining answers to (a) and (b) in para. 9 above, before hearing any evidence and submissions regarding (c). The parties agreed with this proposal. The case was therefore "split" with the issue of liability to be determined first, before any consideration of the issue of what orders - if any - the Tribunal might make (by way of compensation or otherwise).
12. The background regarding the referral of this complaint to the Victorian Civil and Administrative Tribunal ("VCAT") is as follows. The Complainant lodged her complaint with the Equal Opportunity Commission Victoria ("EOC") by letter dated 16 February 1999. The Complainant claimed that she had been subjected to unlawful discrimination on the basis of sex, physical features and impairment (actual or imputed). The EOC declined to entertain the complaint, pursuant to s. 108(1)(a) of the EO Act, in so far as it was based on the attribute of sex. The EOC referred the complaint, insofar as it was based on the attributes of physical features and impairment, to the Chief Conciliator for conciliation. The complaint was not resolved through conciliation. The Complainant then required the EOC to refer the whole complaint to VCAT for a hearing (pursuant to s. 108(2) of the EO Act) - that is, the part of the complaint which the EOC had declined to entertain (based on the attribute of sex) and the aspects of the complaint which could not be conciliated (based on the attributes of physical features and impairment).
13. The Complainant was represented by Mr M. Willoughby-Thomas, barrister and solicitor. The Respondents were represented by Mr A. McNab of Counsel, instructed by Russell Kennedy. The complaint was heard on the following days: 9 and 10 August, 5, 6, 7 and 8 September, and 17 and 23 October 2000. The matter was due to continue on 11 August but was adjourned on the morning of that day when Mr Richard Waycott, the First Respondent, became ill. The hearing resumed on 5 September when Mr Waycott was again in a position to attend. At the conclusion of the hearing, the parties made oral and written submissions on the evidence and the law.
14. The Respondents arranged for the hearing to be transcribed from VCAT audio tapes and I have had the benefit of being able to read the transcript in preparing these Reasons. I note, however, that due to technical problems, parts of the evidence of Ms Menzies, Dr Herbert Bower and Mr Ron Ortenburg were not recorded. As a result, the transcript of these witnesses' evidence was incomplete.
15. For many years, Mr Ronald Menzies (as the Complainant then was) worked for small companies called successively, Central Vac, Central Vac International Pty. Ltd. and Central Hivac International Pty. Ltd. ("Central Hivac"), which designed, manufactured and supplied central vacuum cleaning systems to the domestic, commercial and industrial markets. Mr Menzies did a significant amount of work supplying central vacuuming systems to industry (to deal with the dust and occasional spills generated in manufacturing processes).
16. The central vacuuming industry was, and is, a relatively small one. Mr Menzies had known Mr Richard Waycott (the First Respondent and the Managing Director of Astrovac (Australia) Pty. Ltd. the Second Respondent), and Mr Waycott's son, Mr Steven Waycott, for many years. Mr Richard Waycott ("Mr Waycott") gave evidence that he had known Mr Menzies since 1975. Mr Menzies and the Waycotts had been long-standing business competitors, though they occasionally sold components to each other and helped each other out on projects. In Mr Waycott's words: "We'd known one another in this industry for 25 years; we'd both been competitors and friends." (Transcript, 6 September 2000 at p. 159, hereafter "T, 6/9/00, p. 159").
17. Astrovac (Australia) Pty. Ltd. ("Astrovac") provides work for some twenty-two or twenty-three employees and sub-contractors, and has a Commercial Division and a Domestic Division. Its business premises, consisting of offices and a factory, are located at Box Hill. Astrovac also has a branch office in Queensland.
18. In late 1995, Mr Menzies approached Mr Waycott, asking whether Astrovac was interested in purchasing the business name and the business of Central Hivac. A meeting was arranged to discuss the possible purchase. (Ms Menzies gave evidence that the meeting occurred "at the end of 1995". Mr Waycott gave evidence that it occurred "in late January 1996". I prefer the evidence of Ms Menzies on this point because there was undisputed evidence that the Complainant attended the meeting as Mr Ron Menzies. The Complainant gave evidence that she commenced dressing and living as a woman as from 1 January 1996. If the meeting had been held in late January 1996, the Complainant would have attended as Sharon Menzies, but this did not occur. Hence, I accept Ms Menzies' evidence that the meeting took place "at the end of 1995").
19. It can be noted that Mr Menzies had first consulted Dr Herbert Bower of the Clinic on 17 May 1995 and had had subsequent consultations there. By 20 December 1995, Mr Menzies had been accepted into the two year program conducted by the Clinic, and it had been decided that as from 1 January 1996, Mr Menzies would commence a minimum period of two years living full-time in the chosen (female) gender role.
20. Prior to the meeting held at the end of 1995 - involving Mr Waycott, his accountant, Mr Menzies and Mr Laurie Flynn, an accountant and business associate of Mr Menzies - to discuss the possible purchase by Astrovac of Central Hivac, Mr Menzies asked for a private meeting with Mr Waycott. At the private meeting, Mr Menzies told Mr Waycott that he had always felt he was a woman, that he had now left his wife and family and that he would be spending the rest of his life as a female, commencing with a two-year transition period commencing on 1 January 1996.
21. Mr Waycott gave evidence that he was "surprised by what Ron had told me but proceeded with the meeting as arranged". (Exhibit 14, para. 5). Mr Waycott was interested in purchasing Central Hivac "because he [Mr Waycott] had a good regard for the business and the Complainant's technical ability and knowledge and contacts in the industry" (para. 5 of the document marked "T" for identification, being a letter dated 19 March 1999 from Macpherson & Kelley, the Respondents' then solicitors, to the EOC; it appears that the reference in para. 5 to "In late 1994..." should read "In late 1995 ...").
22. On 13 February 1996, Mr Martin Hicks, a long-standing senior employee of Astrovac and Manager of its Commercial Division ("Mr Hicks"), wrote a memo to Mr Waycott regarding the possible purchase of Central Hivac. Mr Hicks stated that as the domestic side of Central Hivac's business was of no interest:
"... all that remains to attract us to it is the potential to add industrial work to our repertoire, and to do this, we must, `snare', Ron [Menzies] ... He has obviously made some contacts which we can capitalize on, and has `ferreted out' specialist suppliers, together with successful installation works completed. There are no industrial orders [currently held by Central Hivac] - just some formal and informal quotations. These, as you and I both know, may just vapourize. Therefore, the whole thing is a gamble, but, one which in my opinion is worth pursuing .... (Exhibit C, Attachment 1, p. 157; also Exhibit 18).
23. At the time Mr Hicks wrote this memo, he knew (because Mr Waycott had told him) that "Ron [Menzies] was going to become a woman". (T, 7/9/00, p.240).
24. Astrovac decided to purchase Central Hivac, even though the business was somewhat run-down. The main attraction, apparent from Mr Hicks' memo, was the opportunity for Astrovac to expand its work into the industrial field by building on the expertise, contacts and track-record of Mr Menzies.
25. Part of the track-record of Mr Menzies was set out in an advertising brochure which he had produced for Central Vac International Pty. Ltd. (Exhibit D). The brochure lists numerous clients for whom Mr Menzies had designed and installed central vacuum systems. The clients included several hospitals (the Nhill Hospital, the Stawell Hospital, Caulfield Hospital and East Gippsland Hospital), computer rooms (at the National Australia Bank, State Bank of Victoria, Royal Hong Kong Jockey Club, and the Gas and Fuel Corporation, Melbourne), commercial buildings and industry (Hoechst Australia, Shell Australia, and the Australian Institute of Management), and restaurants, schools and a church (McClures Melbourne, Denny's Restaurant, Mazenod College Library, Salesian College, and St Bede's Church, Balwyn. (Exhibit D and T, 9/8/00, pp. 28 - 29).
26. Mr Waycott gave evidence that, "We made a business proposition to enter this [industrial] field and her experience was necessary; she had been in that business, I hadn't been". (T, 7/9/00, p. 219).
27. Astrovac's agreement to purchase Central Hivac was signed on 14 February 1996 (Exhibit C, Attachment 2, pp. 6 - 7). A term of the agreement was that Astrovac would hire:
"... on a trial basis for three months as a sales consultant your present manager Ron Menzies on a retainer of $500 per week plus 5% sales commission, and reimbursement of expenses such as telephone, vehicle running costs and out of pocket expenses. We trust after the initial period we find this a satisfactory relationship to continue indefinitely. We will expect minimum sales of $20,000 per month as a realistic sales target with prospects of better figures in the near future." (Exhibit C, Attachment 2, pp. 6 -7, point 2).
28. Ms Menzies gave evidence that she considered the basis on which she commenced work at Astrovac, including the 5 per cent commission on sales, to be fair and reasonable.
29. At the time in February 1996 that Astrovac decided to purchase Central Hivac and to employ Mr Menzies, Mr Waycott knew that Mr Menzies had decided to take steps to change gender. There was no doubt Mr Waycott knew Mr Menzies' intentions regarding this matter. (T, 9/8/00, pp. 68 - 69 and T, 6/9/00, p. 156). As mentioned earlier, Mr Hicks was also aware of Mr Menzies' intentions.
30. The Complainant commenced work at Astrovac on 16 February 1996. The Complainant was no longer Mr Ron Menzies who presented and dressed as a man; the Complainant was now Ms Sharon Menzies who presented and dressed as a woman. This was because the Clinic's minimum two-year trial period for Mr Menzies to live full-time in the chosen gender of a female had commenced on 1 January 1996.
31. Over the next two years, Ms Menzies continued with a transition program organised by the Clinic. The program included Ms Menzies attending hospital in November 1997 to receive breast implants and in March 1998, Ms Menzies attended hospital for sex reassignment surgery. As mentioned earlier, the surgeon who performed the operation subsequently wrote a letter stating that Sharon Menzies "should now be regarded as a female".
32. Mr Hicks had known Mr Menzies (as he then was) when Mr Menzies had worked with Central Hivac.
33. Shortly before Ms Menzies commenced work at Astrovac's Box Hill premises on 16 February 1996, Mr Hicks visited her twice. The first time was at her work premises at Huntingdale. Ms Menzies gave evidence (which I accept) that on this occasion, Mr Hicks said that, "while he could handle my situation ... Richard Waycott would never be able to handle it. [Mr Hicks] told me however that if I was making sales then Mr Waycott would put up with the situation". (Exhibit B, para. 9, and T, 9/8/00, p. 34).
34. Ms Menzies gave evidence (which I also accept) that Mr Hicks visited her a second time before she commenced work with Astrovac. On this occasion, Mr Hicks visited Ms Menzies at her home. He told her that Mr Waycott had said she should work from home when she commenced work with Astrovac. Ms Menzies said she told Mr Hicks that she refused to work from home. (Exhibit B, para. 10).
35. Before Ms Menzies commenced working at Astrovac, Mr Waycott gave evidence that he gathered the staff together, "and announced that Ron [Menzies] had decided to become a woman and it was intended that she start work at Astrovac. I asked them what they thought of that and the response was that they thought they could handle it". (Exhibit 14, para. 7).
36. Mr Hicks gave evidence that he spoke with individual staff members about "Ron's decision". (T, 7/9/00, pp. 236 - 237). One issue which arose was whether Ms Menzies was going to use the male or female toilets (referred to by Ms Lynne Lennon in her witness statement, Ex. 29 at para .3). Ms Menzies said she wished to make use of the female toilets and Astrovac accommodated this.
37. I accept that both Mr Waycott and Mr Hicks were taking steps which they considered appropriate to deal with a most unusual situation - Astrovac's decision to employ a male person known as Ron Menzies who would commence work presenting as a female and wearing female attire, and who wished to be known as Sharon Menzies. (I note that Ms Menzies had wished to address staff at Astrovac before she commenced work there but that Mr Waycott had not allowed this. (Exhibit B, para. 10)).
38. As mentioned, Ms Menzies commenced work at Astrovac's Box Hill premises on 16 February 1996, and was provided with a work area in the drawing office, a telephone and a van. Her role was to secure new work for Astrovac - particularly in the industrial field - and to manage the installation of vacuum cleaning systems when new projects had been secured. Astrovac had a letterhead printed showing Central Hivac as a division of Astrovac, and Ms Menzies used this letterhead when conducting business. When signing letters, Ms Menzies stated her position as "Sales Engineer". (T, 9/8/00, p. 70).
39. Ms Menzies had considerable autonomy while working at Astrovac. While she notionally reported to Mr Hicks, head of the Commercial Division, Mr Hicks commented that, "She'd been in the industry for thirty years or something. So she had a full autonomy to run with her own jobs. If she asked me for advice or something on union matters or labour, I would assist her in that". (T, 7/9/00, p. 297). The clear picture that emerges from the evidence of Mr Waycott, Mr Hicks and Ms Menzies is that Ms Menzies was expected to identify potential business opportunities in the industrial vacuuming field, to pursue those opportunities and to bring in new business. Ms Menzies did indeed have considerable autonomy.
40. Ms Menzies was successful in bringing substantial new business to Astrovac throughout her period of employment there. While Ms Menzies had been employed on a three month trial basis, her employment was continued on beyond the three month trial period because of her business performance. According to Astrovac figures (set out in Exhibit B, Attachment 1), Ms Menzies brought in business worth:
* $61,494 in the first part of calendar year 1998 (Ms Menzies being on leave from 12 March 1998 and having her employment with Astrovac terminated on 4 May 1998).
41. In 1996, Ms Menzies brought in an average of $23,445 worth of new business per month. In 1997, the average figure per month was $28,592. In these two years, the average amount of new work brought in per month by Ms Menzies exceeded the "expected minimum sales figure of $20,000 per month" set out in Astrovac's agreement to purchase Central Hivac (para. 27 above).
42. During her employment with Astrovac from 16 February 1996 until her employment was terminated on 4 May 1998, Ms Menzies brought in business worth $685,941. Her 5 per cent commission on this sum amounted to $34,297.
43. I note in passing that Ms Menzies contends that the Astrovac figures significantly understate the amount of work she brought in and hence understate the commission due to her. Ms Menzies contends that in 1997, she won a significant contract for Astrovac for work at the Northern Hospital, a contract worth some $550,000. Mr Hicks and Mr Waycott contended that the Northern Hospital contract had been won principally because of their efforts and that, as a result, no commission was due to Ms Menzies. The competing contentions regarding who was responsible for securing the Northern Hospital contract were not pursued during the hearing. If this matter were pursued and it was found that Ms Menzies had in fact won the contract for work at the Northern Hospital, the amount of work she had brought in to Astrovac would be significantly more than indicated by the Astrovac figures quoted above.
44. Mr Waycott acknowledged in cross-examination that Ms Menzies had generated a handsome gross profit for Astrovac during her time with the company: "Certainly ... that was prior till we'd finished the Phillip Morris contract". (T, 6/9/00, p. 153). Mr Waycott acknowledged Ms Menzies' sales ability ("A very good sales person") and her technical ability. ("Yes, she had quite good technical ability - she was a draftsman". T, 6/9/00, p. 155).
45. Mr Hicks, a witness for the Respondents, also acknowledged that from early 1966 until March 1998 (when Ms Menzies took leave to have sex reassignment surgery and he took over the Phillip Morris job), Ms Menzies had worked without difficulty on various Atrovac jobs. (T, 7/9/00, p. 243). He said that prior to the Phillip Morris contract, "The previous [Astrovac] jobs done by Sharon were quite well run. They were fairly satisfactory, yes". (T, 7/9/00, p. 296).
46. Ms Menzies' employment with Astrovac was terminated by the Respondents on 4 May 1998. Ms Menzies contends that the reason for the termination of her employment was the fact that she was (and is) a transsexual female. The Respondents deny this, stating that the reason Ms Menzies' employment was terminated was because she failed to perform to a competent level on the Phillip Morris contract - a large contract involving the design, supply and installation of vacuum cleaning equipment at Phillip Morris' Moorabbin plant - thus putting Astrovac at financial risk and harming its goodwill, credibility and reputation in the industry. Before considering Ms Menzies' role regarding the Phillip Morris contract, I comment on several aspects of Ms Menzies' period of employment with Astrovac.
1. Mr Waycott's counselling of Ms Menzies to "think again"
47. Soon after Ms Menzies commenced work with Astrovac, Mr Waycott gave evidence that he counselled Ms Menzies:
"And I did discuss with her in the very first day or two, had she really thought about this. It was none of my business really, but you do like to think that people are doing absolutely the right thing and the best for themselves because, you know, it must have been a very major decision. And secondly, such a decision must possibly affect your performance and your work." (T, 6/9/00, p. 165, and "T", pp. 3 - 4).
48. Having known Ron Menzies for many years, Mr Waycott was having some difficulty coming to terms with Ron Menzies now being Sharon Menzies. He thought some counselling was in order and so discussed his concerns in private with Ms Menzies.
2. Ms Menzies wearing inappropriate clothes to work
49. Early in her employment at Astrovac, there were occasions when Ms Menzies wore flamboyant clothes to work. Mr Waycott expressed concern to her about this, saying the clothes were inappropriate for work and that staff could be distracted by such clothing. Ms Menzies agreed to modify the clothing she wore to work, and did so. (Exhibit 14, para. 11, and "T", p. 3).
3. Ms Menzies dressing in male clothing one Saturday morning in late February or March 1996
50. Ms Menzies came to Astrovac's premises one Saturday morning in male attire. Counsel for Ms Menzies conceded that his client had done this, asserting that it was a Saturday morning before Ms Menzies commenced work at Astrovac "when Ms Menzies was moving equipment from her previous Huntingdale premises to Astrovac". (T, 7/9/00, p. 239).
51. Ms Lynne Lennon, an Astrovac accounts and secretarial employee since 1993, gave evidence which I accept that it was after Ms Menzies had commenced work at Astrovac that she came to the Astrovac premises in male attire one Saturday morning. Ms Lennon and her husband were leaving the premises when Ms Menzies arrived wearing male attire - and no wig, earrings or make-up. (T, 8/9/00, p. 341).
52. Mr Hicks gave evidence that on the following Monday, Ms Lennon approached him and said:
"You've told us about Sharon and accepting Sharon, [and] we've just got used to the idea of it. Sharon came in on Saturday when I was here with my husband dressed as Ron in Ron's male clothing and what are we to believe? And I said, `Well, I don't know'. I had no answer to that, but I did ask Sharon - because I could talk to Sharon, I never had a problem - what that was, and she said, `That must have been one day when I was going to my Mum's for dinner because Mum can't accept the fact of my change' ".
53. It is not necessary for me to make a finding as to why Ms Menzies attended work at Astrovac one Saturday morning in late February or March 1996 dressed in male attire. I find that she did so attend, and that Ms Lennon found the experience confusing and unsettling. Mr Waycott said the episode caused an upset in the work environment. (T, 7/9/00, pp. 224 - 225).
4. Doing business for Astrovac: Ms Menzies explaining to potential clients that she was a transsexual female, and making site visits
54. When potential clients telephoned Astrovac to discuss possible new business, and were put through to Ms Menzies, Ms Menzies explained that she was a transsexual female, and asked:
"... whether they were happy to have somebody like myself visit them, or whether they wanted to have somebody else come out, like Martin [Hicks] or whoever. And nobody objected to me visiting them at all. So one of the concerns that Astrovac had initially was that - what would be the client reaction to somebody like myself calling on their customers. And my only response to that question at the time was that `I don't really know until we try', and that's why every time a sales inquiry came in, I would mention that fact to them. I didn't want to mislead anybody or lose potential business for Astrovac." (T, 9/8/00, pp. 70 - 71).
55. Ms Menzies said it was her idea to deal with potential customers in the way outlined and also stated: "I didn't want anybody ringing up Richard [Waycott] and complaining about me being the way I was". (T, 9/8/00, p. 71). I understood Ms Menzies to be saying that had she visited potential clients without first informing them that she was a transsexual female, some of the potential clients may have observed that aspects of Ms Menzies' appearance belied her female dress and presentation. In these circumstances, any such potential clients may have felt confused, or that Ms Menzies was somehow deceiving them as to her real identity. Ms Menzies wanted to avoid any such situations. (In the Complainant's final written submissions, it was acknowledged that "... while [Ms Menzies] lives and functions as a female, she retains certain features of her physical gender". (Para. 2(d) of the Complainant's submissions on the EO Act)).
56. When she made visits to building sites, Ms Menzies wore jeans and boots, but presented as a female with "my normal facial make-up on". (T, 9/8/00, p. 72).
5. Mr Waycott being questioned about Ms Menzies' role at Astrovac
57. Even though Ms Menzies gave evidence (which I accept) that potential clients did not object to her visiting them, Mr Waycott found himself being questioned about Ms Menzies' role at Astrovac. In his witness statement, Mr Menzies stated that he said to Ms Menzies:
"... that I was being questioned by people with whom she was dealing including technical service people and engineers. I found that I was being asked to explain her role in our operation and how her situation might be handled on site." (Exhibit 14, para. 12).
58. During cross-examination, Mr Waycott said he had a number of conversations with a Mr Phillip Barlow about the Bonlac project. (T, 6/9/00, p. 162). Mr Hicks explained this matter in his evidence.
59. Mr Hicks referred to an incident which occurred in 1997 when Ms Menzies, on behalf of Astrovac, was installing a central vacuum system for Bonlac Foods at their Darnum Park site in Gippsland. The installation of a central vacuum system formed part of the construction of a large plant for Bonlac. Mr Hicks said that Mr Phillip Barlow, the project engineer for the Bonlac project, contacted him and "asked ... about Sharon" and said there was the risk of physical violence to Ms Menzies if she came onto the Bonlac site, the risk arising because of the attitude of certain workers on site to "Sharon and her gender". In the event, members of all the unions on the Bonlac site held a meeting and agreed that there would be no harassment of Ms Menzies and that she could work there in safety. (Exhibit L, and T, 7/9/00, p. 234, and T, 5/9/00, pp. 56 - 57).
60. I mention Mr Hicks' evidence regarding this matter because it amplifies the evidence given by Mr Waycott that he was being contacted by people with whom Ms Menzies was dealing, "including technical service people and engineers", as to her role with Astrovac and as to "how her situation might be handled on site".
6. Mr Waycott discussing with Ms Menzies the prospect of earning more money by reverting to living and dressing as a man
61. Considerable evidence was given by Ms Menzies and by Mr Waycott on this matter.
62. I accept Ms Menzies' evidence that in early April 1996, Mr Waycott offered to double her salary and provide a car and other benefits if she reverted to living and dressing as a man. Ms Menzies responded to Mr Waycott by stating that she had made her decision and would not change her mind. Mr Waycott then urged her to think again and not be too hasty. (Exhibit B, para. 11). I accept Ms Menzies' evidence on this matter because her evidence remained credible and consistent under cross-examination, and because the evidence of Mr Waycott went a substantial way to support her evidence. During cross-examination, Mr Waycott agreed that during a discussion on marketing strategies with Ms Menzies, he had said to Ms Menzies that she should revert to living and dressing as a male, and that a higher salary and other benefits were contingent on that (T, 6/9/00, p. 162). Mr Waycott said he made the suggestion because he was not sure that Ms Menzies "was serious in her cross-dressing at that time". (T, 7/9/00, pp. 222 - 224).
63. Mr Waycott also acknowledged in his witness statement that he suggested to Ms Menzies that she should dress as a man for work because it would avoid the need for her to explain to potential clients and to others that she was a transsexual female. (Exhibit 14, para. 12).
7. Ms Menzies' working environment at Astrovac
64. Ms Menzies gave evidence that the working environment at Astrovac was unwelcoming from the beginning and remained so; that she felt ostracised and isolated; that Mr Waycott referred to her as "he", "boy" or "mate"; that Mr Steven Waycott, Mr Waycott's son, referred to her as "Ronnie" (Ms Menzies' previous name having been Ron Menzies); that she was excluded from meetings; that on returning to work in November 1997 after having breast implants done, some male staff made comments such as, "show us your tits, Shaz"; and that while in hospital in March 1998 for sex reassignment surgery, no one from Astrovac contacted her or sent good wishes, cards or flowers. (Exhibit B, paras. 16, 17, 21 and 24).
65. On behalf of Astrovac, evidence was given by Mr Waycott (Exhibit 14, paras. 10 and 14), Mr Steven Waycott (Exhibit 31, paras. 7 - 11), Mr Hicks (Exhibit 17, para. 3), Mr Eddie Kols (Exhibit 28), Mr Dwi Sutanto (Exhibit 26), Ms Rose Martin (Exhibit 27) and Ms Lynne Lennon (Exhibit 29). Their evidence was that Ms Menzies was treated as a normal staff member, was not isolated, was not called inappropriate names, was invited to a staff member's wedding, and was not excluded from meetings.
66. In my view, Ms Menzies' work environment at Astrovac could best be described as "variable". I consider that most of the behaviour of Astrovac personnel was unexceptional, but that some behaviour caused Ms Menzies hurt. For example, Mr Hicks acknowledged in evidence that some people called Ms Menzies "Ron". He thought they had difficulty remembering to call her Sharon. (T, 7/9/00, p. 237).
67. In his evidence at the hearing, Mr Steven Waycott stated that, "I have never referred to Sharon as Ronnie". (Exhibit 31, para. 7). I accept Ms Menzies' evidence that Mr Steven Waycott called her "Ronnie" in view of the following statement included in the letter of Astrovac's then solicitors to the EOC: "Stephen [Waycott] has also known the Complainant for many years as a man and continued to call her `Ronnie' out of habit and no disrespect at all was ever intended. ("T", para. 12).
68. With regard to Ms Menzies' claim that she was excluded from meetings, Mr Waycott said that this was not so. He went on to say that meetings were held infrequently and given that Ms Menzies' position was a largely autonomous one, there was no need for her to attend meetings. Mr Waycott also said that he was readily accessible to Ms Menzies if she wanted to speak with him. I find that meetings were not regularly held at Astrovac and that there was no attempt to exclude Ms Menzies from the meetings that were held.
69. As mentioned earlier, Ms Menzies stated that while in hospital [for sex reassignment surgery in March 1998], "I received no contact from the company or company personnel, no calls, cards, flowers or good wishes. A competitor company did however send me flowers". (Exhibit B, para. 24). No one from Astrovac challenged Ms Menzies' evidence on this point. The lack of good wishes from any Astrovac person while Ms Menzies was in hospital does not sit well with the assertion by numerous Astrovac witnesses that Ms Menzies was treated as a normal staff member. The lack of good wishes tends to confirm Ms Menzies' claim that she found the work environment to be not a supportive one.
70. As mentioned, I find that Ms Menzies' work environment at Astrovac was "variable". An insight into the work environment at Astrovac was given by Mr Barlow when he described a visit he made to Astrovac's office to discuss difficulties regarding the Bonlac project at Darnum. In his evidence, Mr Barlow said:
"There was one meeting that I had in the Astrovac offices with the Managing Director [Mr Richard Waycott] and that was around about the time that we had the ... trouble with the unions ... down on the site ...[I]t was around the time when I requested that Sharon actually not attend [the Bonlac] site because of the physical danger, and in my sort of brief chat with this fellow in ... their offices, it was conveyed to me that, you know, there was some confusion and tension about Sharon's transition from a man to a woman, and sort of how it was affecting the office ....". (T, 5/9/00, p. 59).
71. Ms Menzies was asked why she did not complain about her treatment while working at Astrovac:
Question (by Counsel for the Respondents): "I put it to you that ... you never complained?"
Answer: "That is correct, for one very simple reason. I was protecting my job". (T, 9/8/00, p.73).
72. I accept Ms Menzies' reply as a credible one. As a general comment, I state that I found Ms Menzies' evidence to be consistent and reliable.
73. The Phillip Morris Ltd ("Phillip Morris") contract is at the heart of this case. Ms Menzies contended that her employment with Astrovac was terminated because of unlawful discrimination based on her transsexualism, and that her alleged poor performance on the Phillip Morris project was a pretext used to get rid of her (at the time when she was taking leave to have gender reassignment surgery). In response, the Respondents contended that Ms Menzies' employment was terminated because of her poor performance on this contract.
74. Some brief background information regarding the Phillip Morris contract is relevant. Phillip Morris had first called for tenders for the installation of a vacuum cleaning system at its Moorabbin plant in 1994. At that time, Astrovac was one of the tenderers, and a competitor was Mr Ron Menzies (as he then was) on behalf of the company with which he was then associated, Central Hivac. Both Astrovac and Mr Ron Menzies had discussions with a Mr Phillip Sacca of Phillip Morris during the 1994 tendering process. Astrovac's quote was significantly lower than Mr Menzies' quote. In the event, Phillip Morris decided not to go ahead with the project at that stage, and continued on with its "pretty antiquated ... high maintenance [cleaning] systems" (Mr Hicks, T, 7/9/00, p. 296) for several more years.
75. In 1997, after Ms Menzies had joined Astrovac, Phillip Morris again called for tenders for the installation of a vacuum cleaning system at its Moorabbin plant. On this occasion, the area where Phillip Morris wanted a cleaning system installed was smaller than the area contemplated in 1994, but Phillip Morris wanted up to twenty-four operators to be able to use the cleaning system simultaneously (whereas the 1994 requirement had been for approximately half this number of operators). The area where Phillip Morris wanted a vacuum cleaning system installed was the cigarette manufacturing area generally known as the "make pack area" of the Moorabbin plant.
76. Ms Menzies, on behalf of Astrovac, engaged in negotiations with Mr Phillip Sacca of Phillip Morris. Mr Sacca was able to exert considerable commercial pressure on Ms Menzies and on Astrovac because of his knowledge of Astrovac's pricing structure in its 1994 bid.
77. While Ms Menzies had prepared a "rough budget for the sum of $397,534" for the new Phillip Morris contract, the price Astrovac submitted to Phillip Morris was some $263,000. Ms Menzies asserted that Astrovac's quote was a figure specified by Mr Waycott, while Mr Waycott asserted that the figure was one negotiated by Ms Menzies and that she was wholly responsible for it. I accept Ms Menzies' evidence regarding this matter. Given that the Phillip Morris contract had a long history - with Mr Waycott and Mr Menzies first being competitors for it and then Mr Waycott and Ms Menzies attempting to win the contract as business colleagues - I accept Ms Menzies' evidence that she and Mr Waycott discussed the figure to be quoted by Astrovac and that Mr Waycott specified it. In short, I accept the following evidence by Ms Menzies:
Question (by Counsel for the Respondents during cross-examination of Ms Menzies): Would you agree that the price of $263,000 was uneconomic?
Question: It was not possible to do that work at that price?
Answer: It was possible, but only just. Richard [Waycott] worked out that if the project was finished by 30 June [1998], he told me, then he would be happy. I said `Well, a bit light on', he said `Well, it will be okay because we've got enough profit for the year on what we've done already, so if you finish by 30 June, everything'll be sweet'. So he quoted the figure to me, ... because that lined up with the breakdown in quote of Phillip Morris. They had a complete breakdown of all of the costs that Astrovac tendered originally ... . (T, 9/8/00, p. 80).
78. The final quote submitted by Astrovac - for $269,400 - was successful. It was now Ms Menzies' task to manage the design, supply, installation and commissioning of a central vacuum cleaning system that met Phillip Morris' requirements (which were set out in Phillip Morris' Scope of Work document, Ex. P). The task needed to be completed within budget and on time. The Phillip Morris contract was the largest contract that Ms Menzies was asked to manage during her employment with Astrovac. However, before joining Astrovac, Ms Menzies had managed larger contracts (that is, ones with higher dollar values).
79. Over the years, Ms Menzies had made use of Hoffman vacuum pumps on some jobs and Siemens vacuum pumps on others (especially on smaller projects). For the Phillip Morris job, Ms Menzies proposed a single, large Hoffman pump, and I accept that Mr Waycott agreed with this approach as a cost-saving measure. (Astrovac's 1994 submission to Phillip Morris had proposed four smaller Siemens pumps, at greater expense). T, 9/8/00, pp. 103 - 104. A design approach using a single Hoffman pump would involve less expenditure on electrical controls than would a multiple pump system. And Ms Menzies also planned to save labour costs with regard to the on-site installation of piping and associated components by opting for three lines of piping (going to separate parts of the area to be cleaned), rather than four lines. It can be noted that while Mr Waycott agreed with Ms Menzies' proposal for the use of a large, single Hoffman pump, he had not had previous experience using Hoffman pumps, having always opted for Siemens pumps. (T, 7/9/00, p. 225).
80. Aspects of the progress of the project can be seen in documentary evidence tendered during the hearing. I refer to that documentary evidence now.
81. Ms Menzies initially proposed use of "one Hoffman pump 90 kw motor with controls" and noted that the pump would be delivered "16 - 18 weeks from date of order". (Exhibit 4, letter dated 23 September 1997).
82. Around 7 November 1997, Phillip Morris awarded the contract to Astrovac. Phillip Morris' minutes of a meeting held on 20 November 1997 involving Ms Menzies and Mr Sacca included the following:
"1. Astrovac is to provide a preliminary work plan for PML [Phillip Morris] review and approval.
1. Astrovac will check site and prepare shop drawings. These drawings will be reviewed and approved by PML before construction.
Based on these approved drawings, Astrovac is to check the pressure drop and is to verify the suitability of the 90 kw blower. Should the calculated pressure prove the blower inadequately correct, then Astrovac will supply and install the blower at no extra cost to PML.
5. Astrovac is to provide additional electrical information about operating the blower at different speeds. This information is to assist PML investigation into the possibility of incorporating variable speed controller.
83. By 3 December 1997, Ms Menzies was able to confirm receipt of Phillip Morris' order for the work, and to provide Phillip Morris with a work schedule. (Exhibit 5, letter dated 3 December 1997). The work schedule set out numerous key dates, including:
* that Astrovac would submit "shop drawings" for approval by 3 December 1997 (the date of the letter);
* that Phillip Morris would approve shop drawings for construction by 12 December 1997;
* that on-site work would commence on 15 December 1997;
* that installation of an electrical control panel would take place by 16 February 1998; and
* that commissioning and hand over of the system would take place by 13 May 1998.
84. Ms Menzies' letter of 3 December 1997 also named the subcontractors who would be working on the project.
85. On 22 December 1997, Ms Menzies wrote to Phillip Morris forwarding a materials schedule, and a detailed lists of dates for the various stages of the project. (Exhibit 6). Testing and commissioning of the system were now to take place on 15 May 1998. Ms Menzies wrote the letter of 22 December 1997 setting out dates for various stages of the project in fulfilment of a requirement of the Scope of Work document (dated 10 October 1997, Ex. P).
86. By Christmas 1997, Astrovac was able to make its first claim for a progress payment as a significant proportion of "risers" (pipework secured to walls) had been installed.
87. In late December 1997 or early January 1998, Ms Menzies forwarded a materials schedule to Phillip Morris, including details of the pump to be provided. (Exhibit 7 and Ms Menzies' evidence, T, 10/8/00, pp. 116 - 117).
88. On 22 January 1998, Ms Menzies sent Phillip Morris a letter stating that the pump size had been increased to allow for a Phillip Morris 10 per cent
over-design requirement. The letter was as follows:
Further to our recent discussions and re-checking the design of the system airflow to allow for a 10% over design we confirm the following:
The model of Hoffman pump was changed from 751 to 652 series which is increased in physical size and motor to 110 kw. The overall dimensions are 3.05 long x 1.0 wide x high. Clear space for operation would now be 4.5m x 2.5m. Full technical detail will be provided in the equipment schedule. Please find enclosed copies of our design calculations for your assessment". (Exhibit 2).
89. Ms Menzies gave evidence, which I accept, that Mr Sacca had said there was a 10 per cent over-design requirement when she was discussing the project with him on a site visit in January 1998. (Evidence on 10/8/00).
90. It can be noted that the Phillip Morris "Standard Conditions of Contract" (which were applicable to the Astrovac contract with Phillip Morris) provide for extensions of time in completing a contract, in certain circumstances (Exhibit 8, cl. 31.0) and for variations to the contract in certain circumstances (Exhibit 8, cl. 32.0). The latter variation provision includes the following: "The Company shall not become liable for payment of any change in price due to variations unless the variations have been directed or agreed to in writing by the Company".
91. Mr Phillip Sacca is a project engineer who works for Phillip Morris. In 1997 and 1998, he was involved in negotiating Phillip Morris' contract with Astrovac and he was responsible for supervising works carried out under the contract. In 1997 and early 1998, Mr Sacca and Ms Menzies communicated with each other frequently as the installation of the new vacuum system produced an ongoing dialogue between the company and the contractor.
92. Mr Sacca gave evidence because the Respondents summonsed him to do so. The Respondents summonsed Mr Sacca as Ms Menzies' lawyer had objected to a second witness statement filed by Mr Hicks (Ex. 20) on the basis that it contained hearsay statements from Mr Sacca about Ms Menzies' performance on the Phillip Morris job. Mr McNab said that the Respondents had been challenged by Ms Menzies' lawyer to call Mr Sacca "and that's what we're doing". (T, 6/9/00, pp. 205 - 206).
93. There were two main reasons why Mr Sacca and Ms Menzies had regular discussions in the latter part of 1997 and the first part of 1998.
94. First, Mr Sacca was very much a "hands on" contracts administrator. The new vacuum system had to be installed in a busy plant which generally operated twenty-four hours a day, seven days a week. The plant had a great deal of machinery installed within it and the location of new pipes for the vacuum cleaning system was an issue of some sensitivity. New pipes could only be installed at certain times and the risk of contamination to the cigarettes being manufactured in the area needed to be minimised, if not eliminated. These considerations meant that Mr Sacca (and others at Phillip Morris) paid close attention to the shop drawings submitted for approval by Ms Menzies. The process of approval for such drawings became protracted. (Exhibit E is an example, showing numerous revisions and annotations).
95. Second, Mr Sacca had a close interest in the size and operating characteristics of the pump to be used as the heart of the new vacuum system. He wanted to be convinced that the pump selected was the optimum size to power the system (and to provide 10 per cent over-design capacity) and to minimise electricity usage. He was also concerned to assess the risk of pump failure, and to identify technical issues associated with the use of a single pump. Therefore, Mr Sacca did not simply accept Ms Menzies' proposal regarding pump size. He queried it, wanting to ensure that the pump finally selected would power the new system in a cost-effective, reliable and low-maintenance manner.
96. In the circumstances, Ms Menzies decided to upgrade the Hoffman pump (costed at some $65,000) which she had originally proposed in her letter of 23 September 1997 (Exhibit 4), to a larger Hoffman pump costing some $88,500. Ms Menzies subsequently made inquiries of Southern Engineering Services Pty. Ltd. (the firm based in Wollongong, NSW, that imported Hoffman pumps from the USA) about an even larger pump and gear box. Southern Engineering's written response about this latter pump and gear box (quoted at some $129,250) arrived at Astrovac shortly after Ms Menzies had taken leave to have sex reassignment surgery.
97. In December 1997, the Clinic advised Ms Menzies that sex reassignment surgery could be performed on 13 March 1998. Ms Menzies advised Mr Waycott in December that she would be taking leave to have surgery, and to recuperate.
98. On 4 March 1998, Ms Menzies wrote to Mr Sacca about an aspect of the project. Ms Menzies concluded her letter as follows:
"Please also be advised that I will be off site officially from Thursday 12 March until the 4 May. During this time all matters of a contractual nature should be directed to Mr Martin Hicks. Technical or installation situations should be referred to Mr Murray Thompson.
Many thanks for your continued co-operation to ensure that this project is completed by the end of June". (Exhibit 19).
99. On or about 4 March 1998, Mr Hicks was appointed by Mr Waycott and Mr Steven Waycott, directors of Astrovac, to take over the Phillip Morris job (T, 7/9/00, pp. 246 - 247). Mr Hicks understood that he was appointed to complete the job - not just to fill in while Ms Menzies was on leave. (T, 7/9/00, p. 264). There was no change-over meeting between Ms Menzies and Mr Hicks.
100. Ms Menzies took accrued annual leave from 12 March until 4 May 1998, having sex reassignment surgery on 13 March and remaining in hospital until approximately 6 April 1998.
101. Mr Hicks commenced work on the Phillip Morris project by reading the Astrovac file, and by spending two days at Phillip Morris' Moorabbin plant, talking with those working on the project and with Mr Sacca.
102. Mr Hicks gave evidence that once he commenced work on the Phillip Morris contract, he soon realised it was in a "parlous state":
"When I read through the files and I looked at the job and the state it was in, I saw that it was in trouble ... [T]he contract required a program to be put forward of works and completions ... and it indicated that the job would be handed over in its entirety to Phillip Morris for their use in May 1998 and at that stage according to that program ... there was only six weeks to complete it, and I'd say it was only 20 per cent completed, so there was still about $250,000 worth of works, either things to be procured or installed and major items to be procured in that time, and it was - well, I'd say impossible. I saw that there hadn't been a great deal of leadership there and planning, and things were, I'd say, in a very bad state for a project of that size at that time". (T, 7/9/00, p. 242, and Exhibit 17).
103. Mr Hicks said his main concerns on taking over the Phillip Morris project were that:
(a) the size (and hence cost) of the Hoffman pump that Ms Menzies was going to use on the job had not been resolved and he considered there was a real risk of Astrovac having to absorb additional costs if a larger pump were selected (due to the terms of the minutes quoted in para. 82 above, especially point 2 of the minutes);
(b) he was uncertain about the status of the Phillip Morris 10 per cent over-design requirement (and whether Astrovac would have to bear the costs for this, or whether the matter was negotiable);
(c) there were unresolved issues regarding components of the system, particularly the electrical controls;
(d) drawings showing the location of all pipes and components for the system had not been approved by Phillip Morris; and
(e) the testing and commissioning date for the system (15 May 1998) appeared completely unachievable and he considered there was a real risk of Phillip Morris suing Astrovac for breach of contract (by failing to deliver the system on time).
104. Regarding (a) above, Mr Hicks gave evidence that he considered there was a real risk of Astrovac having to absorb additional costs if a larger pump were selected:
* because of the terms of the minutes quoted in para. 82 above, especially point 2 of the minutes; and
* because there was no evidence in the Astrovac files of a variation regarding the pump size having been requested by Astrovac or agreed by Phillip Morris.
105. Mr Hicks said he saw no point in contacting Ms Menzies to discuss the problems he identified. He stated:
"As a senior person in Astrovac to handle jobs, and that being my job, I didn't need to talk to Sharon. I thought that Sharon was responsible for the job and had caused it to become in the state it was in, and the best person to fix it was me, and Sharon was the furthest person from my mind to contact ... I'm trained to fix [jobs]. I'd done it successfully before and being the senior person in Astrovac, that's what I moved to do". (T, 7/9/00, pp. 242 - 243).
106. Mr Hicks discussed with Mr Sacca the single pump approach adopted by Ms Menzies and came to the conclusion that Phillip Morris preferred a multiple-pump approach using Siemens pumps. It can be noted that Mr Hicks had never used Hoffman pumps and had no experience with them. In Mr Hicks' words, "the Hoffman blower [or pump] was never a consideration once I took over ...". (P.5 of Annexure A to Exhibit 17).
107. When Mr Hicks took over the job, he soon dispensed with the services of a Mr Ron Ortenburg, an engineer, who had been providing drafting services and engineering advice to Ms Menzies regarding the Phillip Morris job. Over the years, Mr Ortenburg had worked with Mr Menzies (subsequently Ms Menzies) on a number of occasions. (Exhibit F).
108. Mr Hicks sought advice from Mr Gunter Michaelsen, an electrical engineer with whom Mr Hicks had worked before. Mr Michaelsen had taken early retirement from Siemens, for whom he had worked in several capacities, including as a sales engineer.
109. Therefore, when Mr Hicks took over the job, he made significant changes to the design and engineering approach. The Menzies-Ortenburg design (a single, large Hoffman pump with relatively straightforward electrical controls, 150mm. main pipes, and three main lines), was replaced by the Hicks-Michaelsen approach (four small Siemens pumps with more complex electrical controls, 125mm. main pipes, and four main lines). Phillip Morris agreed with the changed design and engineering approach proposed by Mr Hicks (with technical support from Mr Michaelsen).
110. Throughout the case, Ms Menzies maintained that her design and engineering approach was entirely viable and would have met Phillip Morris' requirements. Ms Menzies said that when she commenced leave on 12 March 1998, she had been having an ongoing dialogue with Mr Sacca about which Hoffman pump was the correct one for the job. Ms Menzies said the issue had not been resolved because there were a number of considerations. Mr Ortenburg gave evidence supporting the design and engineering approach adopted by Ms Menzies. He stated:
"I am aware that Astrovac have subsequently claimed that Sharon Menzies' performance in relation to the contract was not satisfactory. There were difficulties with that contract caused to a large degree by the fact that Phillip Morris frequently altered its requirements. However I have no doubt whatsoever that the system as planned by Sharon Menzies would have worked perfectly and fully met Phillip Morris' requirements." (Exhibit F, para. 4).
111. Mr Michaelsen - asked by Mr Hicks to run a design check on the Menzies-Ortenburg approach shortly after Mr Hicks took over the job - stated the following in his witness statement:
"I established the size of the single pump proposed by Central Hivac Division [of Astrovac] was inadequate. Sharon Menzies changed the order on the supplier for a larger unit; however, when investigated by me and compared with the calculations carried out by me previously, was also inadequate. Therefore I recommended the use of four Siemens pumps that would meet the specifications and give Phillip Morris flexibility, savings in power consumption by utilisation stage performance as required during working hours and ensure continuous operation if pump breakdown or maintenance. It would be my recommendation that multiple pumps have far greater advantage than relying on one single pump." (Exhibit 33, p. 2).
112. Mr Hicks proceeded to implement the Hicks-Michaelsen approach. He was able to avoid the purchase of a Hoffman pump but found that a considerable quantity of 150mm. pipes ordered by Ms Menzies and delivered to the site could not be used because they were the wrong diameter for the new design approach. Mr Hicks also found that the amount allowed by Ms Menzies for electrical controls was insufficient for the more sophisticated electrical controls required by the four pump system. In effect, having decided (with Phillip Morris' agreement) to change the design approach "mid-stream", Mr Hicks was faced with the task of trying to accommodate a series of revised costings for components and labour within the original quote prepared by Astrovac and agreed by Phillip Morris. Difficulties inevitably ensued.
113. As mentioned, Mr Hicks dispensed with Mr Ortenburg's services soon after Mr Hicks took over the Phillip Morris job.
114. Mr Ortenburg gave evidence of a phone conversation he had with Mr Hicks during March 1998. Mr Ortenburg said he phoned to speak to Mr Waycott. Mr Hicks answered the phone and said Mr Waycott was not there. Mr Ortenburg then thought he asked:
"... was Sharon there, and he [Mr Hicks] made some comment about that, and he made a further comment, and I said to him that `I found it pretty hard to come to grips with too', and then he made the comment, `I don't understand why Richard [Waycott] employed him' or `employed him here in the first place, I would never have done that', and then he said `I don't know how he can expect a person to work with someone who starts as a man and ends up as a bloody woman' and then he just went on, and I was ... stunned when I heard this, not so much what was said, but the way it was said." (T 5/9/00, p. 87, and Ex. F, para. 6).
115. While Mr Hicks denied making such comments to Mr Ortenburg, I find that he did make the comments. Mr Ortenburg's account of the substance of the phone conversation remained consistent during vigorous cross-examination. I note that while under cross-examination, Mr Ortenburg conceded that "... in this last few months my short-term memory is not perhaps as good as what it used to be". (T, 5/9/00, p.67). Nevertheless, I accept Mr Ortenburg's account of Mr Hicks' comments in the phone conversation. Mr Ortenburg's credibility was enhanced by his statement that he found Ms Menzies' transsexualism "pretty hard to come to grips with too".
116. Mr Ortenburg submitted a final account for his engineering and drafting services on 31 March 1998 (Exhibit 11) and on 30 April 1998, Mr Hicks wrote to Mr Ortenburg querying why Astrovac should pay the invoices. (Exhibit 12). Mr Ortenburg responded on 14 June 1998 (having been away on holidays during May), stating that more-than-expected computations and design work were needed on the project, a key reason being design changes made by Mr Sacca. (Attachment 2 to exhibit H).
117. I accept the evidence of Ms Menzies (T, 9/8/00, pp. 91-92) and Mr Ortenburg that there were numerous design changes made by Mr Sacca, particularly regarding the location of pipes. Ms Menzies gave evidence that the job itself was relatively straightforward but that it was complicated by Phillip Morris' protracted system for granting approvals for plans, and by changes made to the plans for the project by Mr Sacca (after he had consulted other Phillip Morris managers).
The termination of Ms Menzies' employment with Astrovac
118. On 26 March 1998, Mr Waycott sent a memo to Ms Menzies informing her that, "As from this day the company is relieving you of all responsibility and supervisory authority in relation to the Phillip Morris Contract. Martin Hicks has taken over full responsibility in your place ... We are quite prepared to advise why we are taking this action, when you feel disposed to discuss the matter at the office." (Att. 4 to Ex. B). As will be apparent, Mr Waycott's memo gave no reason why Ms Menzies was being relieved of responsibility for the Phillip Morris job.
119. Mr Waycott sent his memo to Ms Menzies' home. Ms Menzies received the memo on approximately 6 April 1998 when she arrived home from hospital after the sex reassignment surgery. Ms Menzies phoned Mr Waycott the next day and made an appointment to see Mr Waycott at his office.
120. Ms Menzies' meeting with Mr Waycott took place on or about 15 April 1998. Ms Menzies gave evidence that Mr Waycott accused her "of making a mess of the Phillip Morris contract ... that when I returned to work on May 4, I would need to convince him as to why the company should keep me on ... [and] that I should start looking for another job." (Ex. B, para. 27). Ms Menzies says she told Mr Waycott he should have phoned her when she was in hospital for an explanation regarding the size and cost of the pump she was planning to use, and regarding whether she was going to use three lines or four.
121. Mr Waycott agreed under cross-examination that at his meeting with Ms Menzies on or about 15 April 1998, he told Ms Menzies that her employment with Astrovac would be terminated. (T, 6/9/00, p. 180). Mr Waycott gave evidence that it was on the basis of Mr Hicks' mid-March report "of the disastrous state of the contract" that he (Mr Waycott) "made a commercial decision to close the Industrial Division of Astrovac". (T, 6/9/00, p. 194 - 195). The effect of this decision was to terminate Ms Menzies' employment as she made up the Industrial Division. Mr Waycott stated that he also made the decision to close the Industrial Division because it had no further contracts beyond the Phillip Morris one.
122. Mr Waycott gave evidence that when Mr Hicks reported (orally) in mid-March that the Phillip Morris job was in a "disastrous state", he (Mr Waycott) did not ask Mr Hicks:
* what Mr Sacca thought about the state of the job;
* whether Mr Murray Thompson thought the job was in a parlous state; and
* whether he had spoken to Ms Menzies. (T, 7/9/00, pp. 219 - 220).
123. In deciding in mid-March to close the Industrial Division and terminate Ms Menzies' employment, Mr Waycott relied wholly on the advice he received from Mr Hicks. Mr Waycott gave evidence that Mr Hicks did not inform him of the Phillip Morris 10 per cent over-design requirement (T, 6/9/00, p. 177). On this basis alone, Mr Hicks' advice was seriously deficient.
124. When asked in cross-examination whether he considered he had an obligation to get Ms Menzies' side of the story (after receiving Mr Hicks' assessment of the Phillip Morris job in mid-March), Mr Waycott replied: "It was far too late and far too busy in our opinion". (T, 6/9/00, p. 195). Therefore, Mr Waycott decided to terminate Ms Menzies' employment on the basis of Mr Hicks' oral advice regarding the state of the Phillip Morris job, without seeking any comment from Ms Menzies.
125. It can be noted that Mr Waycott did not state that he declined to seek Ms Menzies' side of the story because she was in hospital at the time, and he did not want to disturb her. Such a response would have cast in a different light the fact that Mr Waycott did not seek responses from Ms Menzies regarding Mr Hicks' report that the Phillip Morris job was in a parlous state.
126. As mentioned earlier (para. 121), Mr Waycott gave as a reason for terminating Ms Menzies' employment the fact that the Industrial Division had no further work to undertake beyond the Phillip Morris job. This matter was mentioned in passing by Mr Waycott (T, 6/9/00, p. 195) and I do not place any great weight on it for the following reason. Ms Menzies had brought significant new work to Astrovac over her period of employment with the company. I consider it probable that her sales success would have continued had her employment not been terminated, and Mr Waycott gave no evidence as to why her sales success should not have continued. I note that at the conclusion of Mr Hicks' work for Astrovac on the Phillip Morris job, Phillip Morris invited Astrovac to tender for the installation of vacuum cleaning equipment in a different section of Phillip Morris' plant. Had Ms Menzies been allowed to complete the installation of a vacuum cleaning system in the "make pack area", I consider it likely that the same invitation would have been issued to Astrovac, and that this may have led to further work for Astrovac.
127. When Ms Menzies returned to work at Astrovac on 4 May 1998, she met with Mr Waycott who told her that her employment with Astrovac was terminated. As a result, Ms Menzies ceased work with Astrovac on 4 May 1998. In my view, Mr Waycott had decided to terminate Ms Menzies' employment when he sent her his memo dated 26 March 1998. He then went through a process of meeting with Ms Menzies on or about 15 April 1998 and on 4 May 1998 when Ms Menzies returned to work, but these meetings were not genuine discussions regarding Ms Menzies' employment at Astrovac. They were meetings held to fulfil what Mr Waycott believed to be legal requirements to ensure Ms Menzies' employment was terminated legally. (T, 6/9/00, p. 181). The decision to sack Ms Menzies had been taken by Mr Waycott by 26 March 1998.
128. Mr Waycott relied on Mr Hicks' advice regarding the state of the Phillip Morris job when Mr Hicks took over the project. Mr Waycott did not visit the Phillip Morris site himself. Was Mr Hicks' summation of the Phillip Morris contract - that it was in "a parlous state" - an accurate one? Two witnesses shed considerable light on this question: Mr Phillip Sacca, who was administering the contract on behalf of his employer, Phillip Morris (and who has been mentioned already), and Mr Peter Mathieson, an engineer employed by Lincolne Scott Engineering Consultants.
129. There was strong and consistent evidence that Mr Sacca was a demanding, and at times, difficult, contracts manager. For example, Mr Ortenburg gave evidence that Mr Sacca initially "wanted all the i's dotted and t's crossed but later he realised this was an unworkable requirement" (evidence on 10/8/00). Mr Hicks gave evidence that "Phillip Sacca played it very hard all the time ... he was a very experienced contracts man." (T, 7/9/00, p. 285). Mr Hicks also described Mr Sacca as "pedantic" in his administration of the Phillip Morris contract with Astrovac (T, 7/9/00, p. 298). Mr Waycott said Mr Sacca was "exacting and demanding but I don't know I'd describe him as difficult". (T, 6/9/00, p. 182).
130. Was Mr Sacca - described as a demanding and pedantic contracts administrator - critical of the way Ms Menzies was handling the Phillip Morris contract? The answer is no.
131. Mr Sacca gave evidence that Phillip Morris never imposed a condition that the job be completed by a set date. He said dates were to be worked towards. (T, 8/9/00, pp. 350 - 351). Mr Sacca gave evidence that when Ms Menzies took leave, he had been discussing with her the philosophy of using one motor for the project. Mr Sacca wanted to see detailed calculations showing the implications of moving to a bigger Hoffman pump, a course Ms Menzies had proposed. (T, 8/9/00, pp. 352 - 353). Mr Sacca was not particularly concerned about the project meeting a deadline. He was most concerned, however, to ensure that the design and engineering approach was the correct one. (T, 8/9/00, pp. 348 - 350).
132. Mr Sacca gave evidence that at the time Ms Menzies took leave, "... we were exchanging information ... we were disputing ... we were discussing the control of the switchboard". (T, 8/9/00, p. 351). The reference to "disputing" needs to be placed in context. In his evidence, Mr Sacca said that in his experience, the management of any job "is like a struggle and you take and you give ..." (T, 8/9/00, p. 374). In Mr Sacca's experience, "disputing" was an expected part of contracts management.
133. When asked whether he had requested 10 per cent over-design for the project, Mr Sacca replied that Phillip Morris generally required 10 per cent over-design "for main equipment like fans and pumps". When asked whether there was a 10 per cent over-design requirement for the job in question, Mr Sacca replied, "I would say yes but I can't recall precisely, but usually I wouldn't accept anything less than a little bit more than 100 per cent." (T, 8/9/00, p. 355). Mr Sacca said he could not recall whether he had negotiated to pay an extra 10 per cent for the over-design requirement. (T, 8/9/00, p. 356). Leaving this issue aside, Mr Sacca stated that the contract price was "a lump sum job." (T, 8/9/00, p. 357).
134. During questioning by Counsel for the Respondents, Mr Sacca was given ample opportunity to criticise Ms Menzies' handling of the Phillip Morris contract. Mr Sacca declined to do so. (T. 8/9/00, pp. 354 and 357). When asked whether he was satisfied with the progress of the work (when Ms Menzies was in charge), Mr Sacca replied: "At the beginning we had a few hiccups but yes, could be a little bit better, but was going on, but always we were concerned about the main philosophy of running the system with [one] pump or with multiple pumps". (T. 8/9/00, p. 358). Mr Sacca's evidence did not support "the impression" which Mr Hicks said he gained that as the time for her sex reassignment surgery approached, Ms Menzies "became distracted and wasn't spending enough time on site ... keeping control and leadership of the people there". (T, 7/9/00, pp. 296 - 297). Given that Mr Sacca made no complaint to Astrovac about any lack of attention to the project by Ms Menzies, I do not accept that Mr Hicks' impression was an accurate one.
135. Mr Sacca said that when Ms Menzies went into hospital for sex reassignment surgery, "Murray Mason, the plumber ... was working very good and he was doing good job, he was coordinating ...". (Mr Sacca should have referred to Murray Thompson. It will be recalled that Ms Menzies referred to Mr Thompson in her letter of 4 March 1998 to Mr Sacca: "Technical or installation situations should be referred to Mr Murray Thompson". (Ex. 19)) Mr Sacca's comment regarding Mr Thompson's role while Ms Menzies was in hospital is important because of Mr Hicks' assertion that the project "lacked leadership" under Ms Menzies. Taken as a whole, Mr Sacca's evidence does not support Mr Hicks' assertion that the job was "in a parlous state" when he took over. Mr Sacca was pleased with Ms Menzies' work in installing pipes (T, 8/9/00, p. 373), was pleased with Mr Murray Thompson's work in coordinating the job in Ms Menzies' absence on leave, and had no criticism of Ms Menzies' technical competence or commitment to the job. When asked to compare Ms Menzies' work in administering the contract with Mr Hicks' work, Mr Sacca said he had some difficulties with each of them but "administration-wise, technically - they are similar like, you know ..." (T, 8/9/00, p. 375).
136. Mr Sacca said that "once we let the contract to the contractor we do not interfere ... All what we say, there's the documents, we want you to make the job happen, you complete the ... design and you select what is necessary ..." (T, 8/9/00, p. 357). While Mr Sacca espoused this approach, he did not follow it. He was a hands-on contracts administrator who was keenly interested in the design philosophy underpinning the project. He kept querying Ms Menzies about the single pump approach put forward by Astrovac in its winning tender. If the job was to be completed with a single Hoffman pump, it would be only after Mr Sacca had satisfied himself through exhaustive inquiries that the single pump approach was satisfactory.
137. When Mr Hicks was asked to take over the Phillip Morris contract from Ms Menzies, he said he knew "that the client always wanted multiple pumps". (T, 7/9/00, p. 262). Notwithstanding that a single pump approach had been put forward by Astrovac in its winning tender, Mr Hicks soon gained Phillip Morris' approval - through Mr Sacca - for a change to multiple pumps. This suited Mr Hicks as he had experience working with Siemens pumps, but was not familiar with Hoffman pumps. (T, 7/9/00, p. 266).
138. In the event, Mr Hicks had no trouble in negotiating a six month extension of time for the project. The new central vacuum cleaning system - using four Siemens pumps - commenced operating in December 1998. Mr Sacca said the company was particularly pleased with the system. In his opinion, the four- pump approach was technically superior to the one-pump approach. (T, 8/9/00, p. 374).
139. Given Mr Sacca's evidence about Ms Menzies' performance regarding the Phillip Morris contract, I am not persuaded by the evidence of Mr Douglas Burnip that, "It appeared ... that the project was proving too difficult for Sharon to manage technically". (Ex. 35). Mr Burnip is a director of System Control Engineering Pty. Ltd., a sub-contractor to Astrovac on the Phillip Morris job. He was called by the Respondents and gave evidence that in his view, Ms Menzies' performance in meetings with Phillip Morris representatives was inadequate, and that Ms Menzies should have been well advanced in designing the system controls at the time she took leave to have surgery. During cross-examination, Mr Burnip acknowledged that once Mr Hicks took over management of the project, "Phillip Morris had many, many requirements, we had a lot of negotiations and discussions with Phillip Morris engineers to meet the requirements of the plant". (T, 17/10/00, p. 439). Mr Burnip acknowledged that it took considerable time to produce the electrical control panel because information about Phillip Morris' requirements was not produced at the start of the project, but became available as the project developed. In these circumstances, I am not persuaded that Mr Burnip's criticisms of Ms Menzies' performance are accurate or balanced.
140. Mr Mathieson is a consulting engineer employed by Lincolne Scott Engineering Consultants, Melbourne.
141. Astrovac asked Lincolne Scott to prepare a report comparing the proposed Menzies-Ortenburg design with the Hicks-Michaelsen design (the one implemented at Phillip Morris' Moorabbin plant). Mr Mathieson's report, dated September 2000, is part of Ex. 37.
142. Mr Mathieson was called by the Respondents "as an independent expert witness to assist the tribunal" (T, 17/10/00, p. 447).
143. Mr Mathieson acknowledged in his report that the Menzies-Ortenburg design was incomplete from the documentation provided to him. (This is necessarily so as Ms Menzies was taken off the Phillip Morris contract before completing such matters as pump selection, whether the pump was to operate with a gear, design of the electrical controls, and so on).
* an inspection of the completed Hicks-Michaelsen project; and
* design assumptions which he developed (see Ex. 37, page 1 of letter of 1 September 2000);
Mr Mathieson concluded that "the Hicks-Michaelsen design concept using four Siemens vacuum pumps better meets the central vacuum cleaning system design criteria [established by Mr Mathieson] than the Menzies-Ortenburg design".
145. In response to a question I asked as to whether the Menzies-Ortenburg design would have met the requirements of the job, Mr Mathieson answered, "The Menzies-Ortenburg design would have met the specification requirements as I understand it". (T, 17/10/00, p. 458).
146. In answer to further questions, Mr Mathieson went on to say that the Menzies-Ortenburg design was "typical of a design philosophy that has been around for many decades". (T, 17/10/00, p. 459). He said that the Menzies-Ortenburg design was a dated approach, whereas the Hicks-Michaelsen design was a more sophisticated, modern approach. Mr Mathieson also stated that there was nothing in the Phillip Morris documentation which indicated the type of design philosophy favoured by the company. He stated:
"The scope of work documentation did not tend to indicate anything in that particular nature, no. It was fairly generic and very much sought to put design responsibility and responsibility for the performance of the system back to the installing Contractor". (T, 17/10/00, p. 460).
147. Mr Mathieson did not say that the Menzies-Ortenburg design approach was wrong-headed or fundamentally flawed. While Mr Mathieson considered the Hicks-Michaelsen design a more sophisticated and more modern design approach, he acknowledged that the Menzies-Ortenburg design would have met the requirements of the job.
148. In his witness statement which was tendered in evidence by the Respondents (Ex. 33), Mr Michaelsen stated that after Mr Hicks had asked him (on 20 March 1998) to run a design check on the Menzies-Ortenburg design, he did so, concluding that the proposed single pump approach was inadequate. Mr Michaelsen went on to say in his witness statement: "Therefore I recommended the use of 4 Siemens pumps ...". (Ex. 33, p. 2).
149. In his oral evidence before the Tribunal, Mr Michaelsen was vague as to what his recommendation had been, and as to whether he had made a recommendation at all. (T, 17/10/00, pp. 420 - 422). Mr Michaelsen's oral evidence, as I understood it, was that he had provided Mr Hicks with various calculations, had had a discussion with him about possible pump options, and had left it up to Mr Hicks to make a decision regarding the pump (or pumps) to be used. I did not find the evidence of Mr Michaelson to be of assistance.
150. It is necessary to comment on the evidence of Mr Hicks, a key witness for the Respondents. It was he who said the Phillip Morris job was "in a parlous state" when he took over (Ex. 17, para.5). I found the evidence of Mr Hicks to be unsatisfactory in two significant respects.
151. First, in notes Mr Hicks made on the Phillip Morris contract after Ms Menzies made her complaint of discrimination, Mr Hicks said, "When I took control in March 1998, the total installation was less than 50% completed". (P. 3 of Annexure "A" to Ex. 17). When Mr Hicks gave evidence before the Tribunal, he said on several occasions that the job was only 20 per cent completed when he took over (T, 7/9/00, pp. 242, 254 and 259). When Mr Hicks was cross-examined about the disparity between the "less than 50% completed" statement and the "20 per cent completed" statements, he had no satisfactory explanation for the difference. (T, 7/9/00, pp. 258 - 259). Giving evidence that when he took over, the job was only 20 per cent completed (rather than his earlier statement of "less than 50% completed") is consistent with Mr Hicks wanting to cast Ms Menzies' work on the project in a poor light before the Tribunal.
152. Second, I consider that Mr Hicks' witness statement and the Notes annexed to it (Ex. 17) did not present a balanced picture of the task facing Ms Menzies (or of the task facing Mr Hicks, when he took over). There were real difficulties associated with the Phillip Morris contract. Mr Hicks only gave evidence about these difficulties when responding to questions during cross-examination. For example, Mr Hicks acknowledged under cross-examination:
* that when he took over the job, the piping that had been installed (while Ms Menzies was managing the project) was "in patches. A lot of the areas couldn't be worked on because they were over machines".
Question: "So you acknowledge that it was a difficult area to install piping?"
Answer: "Some was fairly simple, other parts were difficult, very difficult". (T. 7/9/00, pp. 252 - 253).
* that Astrovac's fitters were ordered out of particular areas where they wanted to work. "You see, Phillip Morris works seven days a week and 24 hours a day so that if suddenly they get an order for a container load of cigarettes to go somewhere, everyone has to move out of the area and you're not allowed in to work, so there are a lot of areas that were like that". (T, 7/9/00, p. 254);
* that he knew Ms Menzies' exploration of pump sizes (and number of lines) was aimed at meeting the 10 per cent over-design requirement. (T, 7/9/00, p. 280 - 281);
* that Phillip Morris insisted on Astrovac using Phillip Morris-preferred suppliers for certain componentry, which increased the cost of the job. (T, 7/9/00, 283 - 284);
* that working on the Phillip Morris site was a time-consuming business, given the nature of the plant, its twenty-four hour operation and the amount of machinery there. (T, 7/9/00, p. 288);
* that drawings for the separator had gone to Mr Sacca for approval before Ms Menzies took leave, but that gaining final approval for the drawings was difficult, and Filtaire (sub-contracted to manufacture the separator) were slow commencing fabrication of the separator. (T, 7/9/00, p. 289);
* that Phillip Morris "also had work to do for us in running power and other things, which they were slack on". (T, 7/9/00, p. 301);
* that "if you worked on the job with [Mr] Sacca, he was pedantic". (T, 7/9/00, p. 298); and
* that Phillip Morris readily granted a six month extension on the project when Mr Hicks requested more time - and that the extension of time was not in writing. (T, 7/9/00, p. 301).
153. Mr Waycott stated in his evidence that, "As a result of Sharon's incorrect quoting for the Phillip Morris contract ... Astrovac lost $244,265 ..." (Ex. 14, para. 19). In his witness statement, Mr Hicks stated that, "Sharon Menzies' employment was terminated because she was not a competent person and she was costing the company a great deal of money because of the manner in which she performed her work. Her sexuality was not an issue ... in the decision to terminate her employment." (Ex. 17, para. 8).
154. As stated earlier, I find that the price quoted by Astrovac for the Phillip Morris job was one specified by Mr Waycott. I accept Ms Menzies' evidence that Mr Waycott was prepared to quote a relatively low price for the job, and that the company would have made a small profit on the contract had it been completed by 30 June 1998. Because Ms Menzies was taken off the Phillip Morris job when she went to hospital, it is not possible to say whether she would have delivered the job on budget and on time. However, I consider it likely that had Ms Menzies been able to manage the job to its conclusion, she would have negotiated an extension of time (as Mr Hicks did), and she would have persuaded Phillip Morris of the advantages of a single-pump approach with straightforward electrical controls and three main lines. If the pump size needed to be increased to meet Phillip Morris' 10 per cent over-design requirement, then Ms Menzies would have engaged Mr Sacca in negotiations regarding the additional cost. Bearing in mind Ms Menzies' long experience in the central vacuum cleaning industry, her successful record with Astrovac, and her sound working relationship with Mr Sacca, I consider that the outcome of the project - had Ms Menzies been able to manage it to a conclusion - would have been satisfactory from both Astrovac's and Phillip Morris' points of view.
155. We know that when Mr Hicks took over the job, he embraced a different design approach, one that Phillip Morris agreed to. The nature of the vacuum cleaning system to be installed therefore changed "mid-stream" and Astrovac found it could not deliver the new design approach - involving a multiple pump system with sophisticated electrical controls and four main lines - for the price quoted for the system put forward in Astrovac's winning tender (consisting of a single large pump, straightforward electrical controls and three main lines).
156. Under cross-examination, Mr Hicks acknowledged that piping costs increased after the decision was taken to install four lines rather than three, and that a substantial part of the increase for electrical controls was because of the decision to move to four Siemens pumps. (T, 7/9/00, pp. 292 - 293). Not only had the job been changed "mid-stream", but there were factors associated with working at the Phillip Morris site, and with Mr Sacca outlined in para. 152 above, which produced delays and further costs.
157. It can be noted that when Mr Waycott asserted that Astrovac lost $244,265 on the job, his calculations include allowance for a "60 per cent company margin" (of $187,055). The original quote put forward by Astrovac was on the basis of finishing the work by 30 June 1998 and making a small profit, not on the basis of a longer time-frame and a 60 per cent company margin. Therefore in this way, and in the way the design approach was changed "mid-stream", any attempt to compare the original quoted price with the final cost of the job is not an exercise in comparing like with like.
158. To have a chance of succeeding in her claim, Ms Menzies has the task of proving - on the balance of probabilities - that her transsexualism was a substantial reason why her employment with Astrovac was terminated. Section 8 of the EO Act 1995 is relevant. Can one reasonably infer from the evidence that Ms Menzies' transsexualism was a substantial reason for the termination of her employment? In answering this question, the following factors are relevant.
159. First, without going into Ms Menzies' work record before joining Astrovac, her work record during her employment with Astrovac was a very sound one. Ms Menzies' employment was continued beyond the initial three month trial period and the new business she brought to Astrovac in 1996 and 1997 exceeded the "expected minimum sales figure of $20,000 per month" set out in Astrovac's agreement to purchase Central Hivac. Mr Waycott acknowledged in evidence that Ms Menzies had generated a handsome gross profit for Astrovac during her time with the company.
160. Second, there is no doubting that Ms Menzies had the necessary expertise for the Phillip Morris job. Both Mr Waycott and Mr Hicks acknowledged Ms Menzies' technical competence. In his Notes on the Phillip Morris Contract (Annexure "A" to Ex. 17), Mr Hicks stated: "Menzies, because of her experience in the industrial installation area was chosen to take charge of the complete installation [for the Phillip Morris job] from start to finish in all areas ...".
161. Third, no evidence was given of any complaint being received by Astrovac management regarding Ms Menzies' performance on the Phillip Morris job (or on any other job while she worked at Astrovac). Consistent evidence was given that the contracts manager for the Phillip Morris job, Mr Phillip Sacca, was demanding and pedantic. No evidence was given that he complained to Mr Waycott or anyone else at Astrovac about Ms Menzies' performance on the Phillip Morris job. Despite having ample opportunity to criticise Ms Menzies' handling of the contract when he gave evidence, Mr Sacca declined to do so. Mr Sacca's evidence indicated that he had had a very satisfactory working relationship with Ms Menzies. Mr Sacca also gave evidence that when Ms Menzies went on leave, Mr Murray Thompson (a plumber used on many jobs by Astrovac) was doing a "good job, he was coordinating".
162. Fourth, when Mr Peter Mathieson gave evidence - and he was called by the Respondents as an independent expert - he stated that the Menzies-Ortenburg design approach would have met Phillip Morris' specification requirements. Mr Mathieson said he thought the Menzies-Ortenburg design approach was a dated one, but he offered no stronger criticism. Therefore, I accept that the design approach put forward by Ms Menzies (and supported by Mr Ortenburg) was a viable technical solution for the task at hand.
163. Fifth, Ms Menzies gave evidence - which was not challenged - that three or four days after having sex reassignment surgery, she phoned Astrovac, spoke with Mr Steven Waycott (Mr Waycott's son and the manager of the Domestic Division of Astrovac), and asked how the Phillip Morris project was going. Ms Menzies' evidence was as follows:
"... Steven said, `Oh, there's a few little problems, but there's nothing much, we can fix it all up, don't you worry about it, you just get yourself better and see you when you come back to work'. So I assumed that that was fine. He didn't wish to bother me. I said, `I'm not sick or anything, you can ring me and talk to me about anything you want at any time'. ..." (T, 9/8/00, p. 42).
164. This evidence has significance in the context of a point that was made several times by Ms Menzies during her evidence: that if Mr Hicks, Mr Waycott or anyone else at Astrovac had had concerns or queries about the progress of the Phillip Morris job once she went on leave, they should have phoned her and put their queries to her. (T, 10/8/00, pp. 121, 125 - 126). The significance of Ms Menzies' phone call to Mr Steven Waycott on approximately 16 or 17 March 1998 - shortly after Ms Menzies underwent surgery - was that she was indicating to Astrovac management that she was well enough to respond to questions about the Phillip Morris job. In these circumstances, I consider it most unusual that neither Mr Hicks nor Mr Waycott contacted Ms Menzies to ask questions about the Phillip Morris job. It was, after all, at about this time in mid-March 1998 that Mr Hicks was reporting to Mr Waycott that the Phillip Morris job was in a parlous state. In my view, basic fairness demanded that before any decision to terminate Ms Menzies' employment was made, any concerns that Astrovac had about the progress of the job should have been communicated to Ms Menzies and responses sought. This was not done and in my view, no reasonable explanation was given by Mr Waycott or Mr Hicks as to why it was not done.
165. Sixth, because of her transsexualism, Ms Menzies' employment at Astrovac had not passed without incident. Several matters were referred to earlier, including:
* Ms Menzies wearing inappropriate clothing to work early in her employment with Astrovac (para. 49 );
* Ms Menzies going to work one Saturday morning in male clothing (paras. 50 - 53);
* Mr Waycott being asked to explain "her role in our operation and how her situation might be handled on site" (paras. 57 - 60);
* Mr Hicks' evidence that he was told that if Ms Menzies visited a construction site at Darnum, there was a risk of physical violence being done to her because of the attitude of certain workers on site to "her gender" (para. 59); and
* Mr Barlow's evidence that when he visited Astrovac's office, it was conveyed to him that there was some confusion and tension about Ms Menzies' transition from a man to a woman, and that it was (adversely) affecting the office (para. 70).
166. I consider that although Ms Menzies was bringing new business to Astrovac, the fact that she was a transsexual meant issues arose which Astrovac management had not anticipated and was ill-prepared to manage.
167. It must be said that when Astrovac decided to employ Mr Ron Menzies (as he then was), Mr Waycott and Mr Hicks knew that he intended to take steps to spend the rest of his life as a female. It was argued by Counsel for the Respondents that the Respondents could easily have declined to employ the Complainant, if they had difficulties with the Complainant's transsexualism, but that they had not done so. On the contrary, they had employed the Complainant in the full knowledge that Ron Menzies would commence work at Astrovac as a person living and dressing as a woman. It was also submitted by Counsel for the Respondents that if the Respondents had wanted to get rid of Ms Menzies, they could have done so in November 1997 when she visited hospital for breast implant surgery - but they had not done so.
168. While acknowledging that these submissions have some weight, it is my view that Astrovac management employed the Complainant believing that her stated intention to live as a woman would not be carried through. Either she would herself decide to revert to living and dressing as a man, or she would be persuaded to do so. I refer to Mr Waycott's counselling of Ms Menzies to "think again" (paras. 47 - 48) and his attempt to encourage her to live and dress as a man, saying a higher salary and other benefits were contingent on that. Mr Waycott gave evidence that he made the suggestion because he was not sure that Ms Menzies "was serious in her cross-dressing at the time." (para. 62 ). The fact of the matter is that Ms Menzies was committed to undertaking the Clinic's two year transition program, including - when the opportunity arose - having sex reassignment surgery.
169. During cross-examination, Mr Waycott was asked whether he was uncomfortable in Ms Menzies' presence (when she was working at Astrovac). Mr Waycott did not give a direct answer (T, 6/9/00, pp. 162 - 163). Mr Waycott's demeanour in the witness box during cross-examination on this point indicated, in my view, that he felt considerable unease in Ms Menzies' presence when she worked at Astrovac.
170. I consider it is reasonable in all the circumstances to draw the inference that when Mr Waycott decided to terminate Ms Menzies' employment, Ms Menzies was treated less favourably because of her transsexualism than Mr Waycott would have treated a person who was not a transsexual in the same or similar circumstances. Section 8 of the EO Act is relevant.
171. The following hypothetical situation is intended to illustrate the point. Let us assume that Astrovac had employed John Smith (rather than Sharon Menzies) as a sales engineer and that Mr Smith had a solid record with Astrovac, bringing in substantial new business. If Mr Smith were managing the Phillip Morris job but had to take leave for surgery on his back followed by time for recuperation, I consider that Mr Hicks and/or Mr Waycott would have contacted Mr Smith as a matter of urgency if any concerns had arisen about the Phillip Morris job. Mr Hicks and/or Mr Waycott would have quickly asked for explanations. This would be the fair thing to do, the commercially sensible thing to do, and in the case of Mr Smith, I consider it would have been done. In the case of Ms Menzies, it was not done, and in my view, no reasonable explanation was given for this failure. Mr Waycott in evidence said that Astrovac "runs largely on a team basis, everybody works together ..." (T, 6/9/00, p. 144). When Ms Menzies went to hospital for sex reassignment surgery, she was not treated as a team member. Rather, she was cut adrift, and I consider a substantial reason was her transsexualism. Section 8(2)(b) of the EO Act is relevant, as is s. 10.
172. In the circumstances, I consider that Mr Waycott (and Mr Hicks) treated Ms Menzies less favourably on the basis of her transsexualism than they would have treated a person who was not a transsexual, in the same or similar circumstances. The less favourable treatment occurred on the basis of Ms Menzies' transsexualism, which - by virtue of s. 7(2)(c) of the EO Act - includes less favourable treatment on the basis of a characteristic generally imputed to transsexuals. I accept the Complainant's contention that:
"In relation to imputed impairment, the attitude and conduct of the Respondents indicates that they regarded the Complainant's determination to live and dress as a woman and to proceed to gender reassignment surgery as a psychological abnormality which they counselled her to reconsider. Further, they regarded her physical state, both before and after surgery, as an abnormality". (Complainant's final written submissions regarding the EO Act, para. 2(c)).
Therefore, in my view, Ms Menzies was treated less favourably because of her transsexualism, and because of a characteristic or characteristics generally imputed to a person who is a transsexual. The Respondents' explanation as to why Ms Menzies' employment was terminated - that her performance on the Phillip Morris contract was poor and was putting Astrovac at considerable financial risk - is not credible on the evidence before the Tribunal.
173. While I consider that Ms Menzies was accorded less favourable treatment because of her transsexualism, this does not of itself amount to a finding of unlawful discrimination under the EO Act. Unlawful discrimination will only occur if transsexualism falls within one or more of the "attributes" set out in section 6 of the EO Act.
174. Because of the conclusion I have reached in para. 172, I do not consider it necessary to examine the Complainant's contentions that she was subjected to indirect discrimination (as set out in section 9 of the EO Act). In any event, Ms Menzies' case was put principally as a complaint of direct discrimination.
175. The question to be addressed now is whether transsexualism can properly form the basis for a claim of discrimination under the EO Act. The Complainant contended that one or more of the attributes of "sex", "physical features" and/or "impairment" in s. 6 of the EO Act encompass transsexualism. The Respondents denied that any of these attributes encompass transsexualism. Given these competing views, how should the question be determined? Five preliminary points are relevant.
176. The parties did not refer to any Australian case in which the issue at hand has been decided, and I am not aware of any Australian case law on the issue.
177. Section 35 of the Interpretation of Legislation Act 1984 provides that:
"In the interpretation of a provision of an Act or subordinate instrument -
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;
178. The objectives of the EO Act are set out in s. 3 as follows:
(a) to promote recognition and acceptance of everyone's right to equality of opportunity;
(b) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;
3. The interpretation of remedial or beneficial legislation
179. The EO Act may be described as remedial or beneficial legislation. Pearce and Geddes in Statutory Interpretation in Australia (Butterworths, 4th edition, 1996, at p. 222) refer to a statement by Isaacs J. in Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 as indicating the orthodox view regarding the interpretation of remedial or beneficial legislation. Referring to a provision of the Crown Lands Act of 1895, Issacs J. said (at 384):
"In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially ... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow."
180. That equal opportunity legislation has been regarded as remedial legislation and as legislation which should therefore be interpreted liberally, has found support in cases such as Sinnapan v Rizkalla [1993] VicRp 38; [1993] 1 VR 547 at 550 and 553, and Waters & Ors v Public Transport Corporation (1991) EOC 92 - 390 (Mason CJ and Gaudron J, Deane J agreeing, at p. 78, 674).
4. Whether a later amendment has relevance to the interpretation of an earlier provision
181. Consideration needs to be given to whether a recent amendment to the EO Act has any effect on the interpretation to be given to the relevant attributes ("sex", "physical features" and "impairment") in this case.
182. On 13 April 2000, the Attorney-General gave the Second Reading Speech for the Equal Opportunity (Gender Identity and Sexual Orientation) Bill. Regarding gender identity, the Attorney said:
"This bill introduces the attribute of gender identity into the Equal Opportunity Act and extends the protection against discrimination afforded by the Act to people whose gender identity does not match their physical sex at birth. ...
The umbrella term `transgender' is commonly used to describe such people. The term `transgender' describes a range of people such as those who have undergone gender reassignment surgery, those who have not undergone surgery but seek to live as a member of the other sex and those who temporarily adopt the characteristics of the other sex such as cross-dressers.
The term `gender identity' is used in the bill, however, because the amendment is designed to protect not only transgender people but also people born of indeterminate sex who seek to live as a member of a particular sex.
The Equal Opportunity Act currently does not prohibit discrimination on the basis of a person's gender identity. This undermines the objective of the Act to eliminate, as far as possible, discrimination against people ...".
183. The Bill has been passed by the Parliament and it came into operation on 9 October 2000 (during the hearing of this case).
184. The present case must be decided on the law as it existed in March 1998 when Ms Menzies' employment was terminated, a substantial reason being her transsexualism. In considering whether one or more of the attributes of "sex", "physical features" and/or "impairment" is or are capable of including transsexualism, what guidance (if any) can be gained from the fact that a recent amending Act has inserted the attribute of "gender identity" into the EO Act? "Gender identity" in the amending Act is defined to include transsexualism (s. 4(a) of the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000).
185. The question for consideration is whether the meaning of original provisions (the attributes of "sex", "physical features" and "impairment" and whether one or more include transsexualism) should be interpreted in the light of an amendment (which adds "gender identity" as an attribute under the EO Act, being an attribute defined to include transsexualism).
186. In Grain Elevators Board (Victoria) v Shire of Dunmunkle [1946] HCA 13; (1946) 73 CLR 70, Dixon J. considered that it was proper to take into account an amendment (passed too late to apply to the case at hand) when interpreting an earlier provision. The question for determination was whether land acquired by the Grain Elevators Board came within an exemption from rating under the Local Government Act 1928. Amending legislation provided that land used exclusively for any grain elevator was not deemed rateable property. Dixon J. observed (at p. 86):
"Although the provision was passed too late to apply to the present case, I think that it may be considered on the question of interpretation. It would be a strange result if we were to interpret the prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile."
187. Dixon J.'s approach has been followed in numerous cases (set out in Pearce and Geddes, Statutory Interpretation in Australia, at p. 71).
188. However, there are other considerations. In Re Samuel [1913] AC 514, Viscount Haldane, delivering the decision of the Privy Council, said (at 526):
"It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela [from excess of caution], to remove possible doubts."
Pearce and Geddes note that Viscount Haldane's dictum was applied by Franki J. in Thompson v J.T. Fossey Pty. Ltd. (No. 1) (1978) 20 ALR 496. In this case, the Federal Court was called upon to interpret s. 53(a) of the Trade Practices Act 1974. Franki J. declined to look to the words of a 1997 amendment to assist in interpreting the original provision, saying (at 501 - 502):
"There is some considerable authority for the proposition that, if the words of a statute are ambiguous, it is permissible to examine a later statute to determine whether it throws any light upon the construction of the earlier statute. However, it seems that a condition which must exist before this is permissible, even where the later Act contains a provision that it is to be construed as one with the earlier Act, is that the meaning of the earlier statute must be ambiguous.
In Kirkness v John Hudson & Co Ltd [1955] 2 ALL ER 345; [1955] AC 696 at 710-714 it was said by Viscount Simonds (at 712) in relation to this matter that words are not ambiguous unless the judge thinks they are "fairly and equally open to diverse meanings". See also Re MacManaway and Re The House of Commons (Clergy Disqualification) Act 1801 [1951] AC 161 at 177-178.
I cannot see why the prerequisite of an ambiguity should not apply when it is sought to use an amendment to an Act to assist in the interpretation of the original Act. I think a court should be careful not to assume that the legislature has not amended the Act for the purpose of clarifying it in the eyes of the layman."
189. The approach adopted by Franki J. in the Thompson Case was adopted by the Full Federal Court in Allina Pty Ltd. v Federal Commissioner of Taxation [1991] FCA 78; (1991) 99 ALR 295. In this case, the Full Federal Court had the task of applying a provision of the Income Tax Assessment Act 1936 in the context of the Commissioner having disallowed an objection to the taxpayer's assessment in respect of an item in the taxpayer's return for the year ended 30 June 1987. When the Court came to consider the matter, the relevant provision of the Act had recently been amended. The Court said (at p. 303):
"There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also, care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts .... We do not discern any ambiguity in the relevant words of s. 160ZH(9)(a), so do not find it necessary to call in aid the language of the amendment to para (a)."
5. The "Act is always speaking" approach to interpreting legislation
190. When considering the question of whether transsexualism is covered by the attributes of "sex", "physical features" and/or "impairment", a question likely to arise - particularly in the context of "impairment" - is whether a word or words used in legislation should be given their current meaning or the meaning the word or words had at the time the legislation was enacted.
191. Pearce and Geddes point out (at pp. 90 - 91) that while the courts used to consider that Acts were to be construed in accordance with their natural meaning as at the date of their enactment, the modern approach now adopted by courts is that the words in an Act are to be interpreted in accordance with their current meaning. The modern approach is summarised by the expression, "an Act is to be deemed to be always speaking". Chappell and Co. Ltd. v Associated Radio Co of Australia Ltd. [1925] ArgusLawRp 40; [1925] VLR 350 provides a good example of the modern approach.
192. Having considered several preliminary points, it is now necessary to consider whether the condition of transsexualism is covered by one or more of the attributes relied upon by the Complainant.
Does the attribute of "sex" in s. 6(k) of the EO Act encompass transsexualism?
193. The Complainant's submissions included the following:
"In relation to sex, the Complainant relies on the fact that the Act does not define `sex' and thus a transsexual of female orientation can be regarded as a person of the female sex for the purposes of the Act. Further the Complainant relies on the fact that after gender resassignment surgery, she was a female. Additionally, or in the alternative, the Complainant relies on the fact that when a person is dismissed from employment or otherwise less favourably treated and a substantial reason is the fact that she or he intends to undergo or has undergone gender reassignment surgery, then that treatment is less favourable in comparison with persons of the sex to which she or he was deemed to belong before undergoing gender reassignment surgery."
The Respondents' submissions included the following:
"In relation to sex, it is submitted that the Act does not apply to the person who is transgender. "Sex" is not defined in the Act. The Shorter Oxford Dictionary defines sex as `being male or female'. If `sex' is given its ordinary meaning it would not include transgender."
194. Given that "sex" is not defined in the EO Act, I propose to refer to dictionary definitions and to the relevant Second Reading Speech.
195. The Macquarie Dictionary (Second Revision, Reprinted 1990) defines "sex" as:
"1. the character of being either male or female: persons of different sexes. 2. The sum of the anatomical and physiological differences with reference to which the male and the female are distinguished, or the phenomena depending on these differences. 3. the instinct or attraction drawing one sex towards another, or its manifestation in life and conduct. 4. Men collectively or women collectively: the fair sex ...". (P.1553).
196. The Shorter Oxford English Dictionary (1973, Reset 1980) defines "sex" as:
"1. Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (esp. of the human race) viewed collectively. 2. Quality in respect of being male or female ... 3. The distinction between male and female in general. In recent use: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned..." (P.1958).
197. When Victoria's first Equal Opportunity Bill was given its Second Reading in November 1976, the then Premier said:
"[The Bill's] purpose is to prohibit certain kinds of discrimination on the grounds of sex or marital status, and to promote equality of opportunity between men and women.
A person discriminates for the purposes of the Bill if, on the ground of the sex or marital status of another person, he treats that person less favourably than he treats or would treat a person of the other sex or of a different marital status ..." (Hansard, Assembly, 11 Nov. 1976, 4077 and 4079).
198. In my view, "sex" in the EO Act has the straightforward meaning of the state of being male or the state of being female. The attribute of "sex" is included in the EO Act to prohibit discrimination on the basis of a person being a male or on the basis of the person being a female.
199. This means, in my view, that transsexualism is not covered by the attribute of "sex" in section 6(k) of the EO Act because transsexualism is "the condition of one who firmly believes that he (or she) belongs to the opposite sex to his (or her) biological gender." (Concise Medical Dictionary, Oxford University Press, 4th ed., 1994, p. 672).
Does the attribute of "physical features" in s. 6(f) encompass transsexualism?
200. The Complainant's submissions included the following:
"In relation to physical features, the Complainant relies on the bodily characteristics associated with her transition to gender reassignment surgery and thereafter including breast implants, alterations to her voice and the absence of male sex organs. [The Complainant] also relies on the fact that while she lives and functions as a female, she retains certain features of her physical gender."
201. The Respondents submitted that "physical features" did not encompass transsexualism.
202. "Physical features" is defined in section s. 4 of the EO Act as meaning "a person's height, weight, size or other bodily characteristics."
203. A 1995 amending Bill proposed the inclusion of the attribute of "physical features" in the Act. In the Second Reading Speech, the then Attorney-General said:
"Victoria is the first jurisdiction in Australia to prohibit discrimination on the basis of a person's physical features, which are defined in the bill to mean a person's height, weight, size or other bodily characteristics. Society places too much emphasis on a person's bodily characteristics, over which the person may not have much control. For instance, a person may not have any control over a birthmark across his or her face. A person's physical features should not be used to judge the suitability of the person for a job. Ultimately, such judgment should be based on performance criteria. If a person is the best qualified person and can perform the required duties, the fact that he or she is of a certain height or weight should be irrelevant. The attribute of physical features is not intended to include such things as tattoos or body piercing which a person may choose to acquire." (Hansard, Assembly, 4 May 1995, p. 1251).
204. It is apparent that the attribute of "physical features" is meant to encompass people's physical features, as that term is normally understood.
205. The less favourable treatment that I consider was accorded to Ms Menzies was on the basis of her transsexualism, that is, on the basis of the fact that despite being biologically male, Ms Menzies firmly believed that she was female and, as a consequence, had decided to take steps to give effect to her belief. In my view, the concept of transsexualism is not encompassed by the attribute of "physical features" in s. 6(f).
Does the attribute of "impairment" in s. 6(b) encompass transsexualism?
206. It is necessary to consider this question in the light of:
* the definition of "impairment" in s. 4 of the EO Act;
* the Second Reading Speech when impairment was included in the EO Act as an attribute;
* the evidence of Dr Herbert Bower, a psychiatrist called by the Complainant (and the only medical witness called in the case);
* the submissions of the Complainant and the Respondents; and
* accepted principles of statutory interpretation, including the matters outlined in paras. 177 - 191 above.
The definition of "impairment" in s. 4 of the EO Act
207. For present purposes, the relevant part of the definition of "impairment" in section 4 of the EO Act is:
The words used in this part of the definition of "impairment" are straightforward words, without any limitations or qualifications. It can be seen that a "malfunction of a part of the body" amounts to "impairment". It can also be seen that a malfunction of a particular kind, that is, "a mental or psychological disease or disorder", amounts to "impairment".
208. Dictionary definitions are of assistance in understanding the key words used in the part of the definition of impairment which is under consideration. The Macquarie Dictionary defines:
* "malfunction" as "to fail to function properly";
* "mental" as "of or pertaining to the mind; performed by or existing in the mind; pertaining to the intellect; denoting a disorder of the mind";
* "psychological" as "of or pertaining to psychology; pertaining to the mind or to mental phenomena." ["Psychology" is defined as "the science of mind, or of mental states and processes; the science of human nature"].
209. In view of the words used in (d)(i) of the definition of "impairment", and bearing in mind the dictionary definitions of the key terms, I reach a preliminary view that transsexualism amounts to a failure by a part of the body to function properly and that the failure has a mental component. This is because a transsexual, in this case Ms Menzies, has the physical body of one sex but considers they are truly of the opposite sex, and so firmly is this conviction held that the person may take significant steps, including surgery, to try and mend the dissonance between mind and body. As mentioned, my preliminary view is that the condition of transsexualism experienced by Ms Menzies amounts to a "malfunction of a part of the body" and that the condition has a mental component.
The Second Reading Speech when "impairment" was added as an attribute
210. "Impairment" was proposed for inclusion in the EO Act as an attribute in 1982. The Second Reading Speech regarding the Equal Opportunity (Discrimination Against Disabled Persons) Bill (No. 2) included the following:
"The word "impairment" is broadly defined in the legislation and includes both a mental, as well as a physical, incapacity." (Hansard, Assembly, 1 December 1982, p. 2288).
211. No other part of the Minister's Second Reading Speech casts light on the meaning of "impairment".
212. The only medical evidence in this case was given by Dr Herbert Bower, a psychiatrist called by the Complainant. Dr Bower is a consultant psychiatrist associated with the Gender Dysphoria Clinic of the Monash Medical Centre. He has had a long involvement with patients who are transsexuals. The Complainant was one of Dr Bower's patients. Counsel for the Respondents did not challenge Dr Bower's expertise in the field of transsexualism.
213. In his witness statements (Exhibits A and G) and in his oral evidence, Dr Bower emphasised that in his view, transsexualism is a biological disorder. Dr Bower stated:
"During the course of my [earlier] evidence ..., I emphasised that gender identity disorder was a biological disorder ...
A biological disorder is a disorder i.e. an abnormality of function, which is based on some subtle or major change in the anatomical or sub-anatomical aspects of the body. A disorder arising from a genetic defect as is the case with Huntington's disease, is a biological disorder. Furthermore schizophrenia is now regarded as a biological disorder having its basis in genetic, biochemical or structural factors.
To describe gender identity disorder as a biological disorder, does not mean that it is not properly characterised as a mental disorder. Any disorder involving an abnormality in behaviour i.e. a divergence from normal, can be so characterised as there is a mental manifestation of the disorder." (Ex. G).
214. During cross-examination, Dr Bower confirmed his belief in the biological basis of transsexualism in the following exchange with Counsel for the Respondents:
Question: Prior to surgery, there was nothing psychologically wrong with Ms Menzies?
Question: The Complainant's desire to become a woman was not based on a mental or psychological disorder?
215. I understood the essence of Dr Bower's evidence to be that Ms Menzies' transsexualism had a biological basis; that biological factors affected Ms Menzies' mental processes so that she had a deeply-held belief that despite being a male physically, she was more truly a person of the female sex; and that Ms Menzies had no mental or psychological disease or disorder of the kinds regularly seen by psychiatrists (such as schizophrenia or a depressive disorder). I understood Dr Bower to be saying that a person such as Ms Menzies functions normally, save for a deeply-held belief which defies logic - and which the transsexual knows defies logic - that the person's sex is really the opposite of that represented by the person's physical body.
216. When I asked Dr Bower if a person ceases to be a transsexual if the person goes through the Clinic's lengthy program, including gender reassignment surgery, Dr Bower said:
"[M]y own feeling is that he or she ceases to be transsexual and is now a person of the opposite gender ... In my opinion the disorder no longer exists ... The belief in terms of gender identity disorder is really a lack of synchronism between the gender identity of that person and sexual organs. There is a lack of synchronism. That synchronism has then been established. In other words, the person, the male to female says, I feel I'm a female and the person now has female genital organs so from disorder or asynchronism we have turned to synchronism." (T, 5/9/00, pp. 16 - 17).
217. Dr Bower said he would be reluctant to say that a transsexual had been "cured" following completion of a transition program because "cure is something total and absolute and I think in human affairs generally and [in] biological affairs, one can never aim or achieve 100 per cent but one has converted that person from an unhappy and maladjusted one into an adjusted and well-functioning [one]." (T, 5/9/00, p. 17).
218. The evidence of Dr Bower adds weight to my preliminary view that Ms Menzies' transsexualism amounts to a "malfunction of a part of the body." On Dr Bower's evidence, the condition has a biological basis resulting in a lack of synchronism between the psychological gender identity of the person and the person's physical gender. There is, in other words, a biological malfunction in a transsexual person and the malfunction has psychological manifestations.
The submissions of the Complainant and the Respondents
219. The Complainant's submissions included the following:
"In relation to the attribute of impairment, the Complainant relies on both actual and imputed impairment.
In relation to actual impairment, transsexualism is a recognised mental disorder. Further, it can be characterised as a malfunction of a part of the body and/or a malformation of a part of the body.
Still further, s. 7[2][b] defines discrimination on the basis of an attribute to include discrimination `on the basis of a characteristic that a person with that attribute generally has'. A characteristic of gender identity disorder is that the person seeks a physical appearance in harmony with their psychological gender. This includes physical changes such as breast implants, alterations to the voice and ultimately gender reassignment surgery. But it also includes living and functioning in accordance with the psychological gender [including in appearance, dress and lifestyle] while inevitably retaining some features of the physical gender. In other words, there will however almost always invariably be some elements of the transsexual's physical appearance which belie the psychological gender - and this is a characteristic of gender identity disorder even after surgery.
In relation to imputed impairment, the attitude and conduct of the Respondents indicates that they regarded the Complainant's determination to live and dress as a woman and to proceed to gender reassignment surgery as a psychological abnormality which they counselled her to reconsider. Further, they regarded her physical state, both before and after surgery, as an abnormality." (Complainant's final written submission, 21 October 2000).
220. Submissions made by the Respondents included that I should pay close attention to:
(a) the Attorney-General's Second Reading Speech when introducing the Equal Opportunity (Gender Identity and Sexual Orientation) Bill, particularly the statement that, "The Equal Opportunity Act does not prohibit discrimination on the basis of a person's gender identity". (Hansard, Assembly, 13 April 2000, p. 1015).
(b) Dr Bower's evidence that transsexualism had a biological basis and that it was not a mental disorder (and therefore fell - so it was contended - outside the definition of "impairment"); and
(c) Dr Bower's evidence that in his opinion, a person ceases to be a transsexual following completion of a transition program (including surgery) - given that at the time Ms Menzies' employment was terminated, the attribute of impairment (being transsexualism) could not then be present as Ms Menzies had completed the program, including having had surgery.
221. In my view, the Respondents' submission in (b) above over-simplifies Dr Bower's evidence. I consider the following statement by Dr Bower (quoted earlier) to accurately represent his view:
"To describe gender identity disorder as a biological disorder, does not mean that it is not properly characterised as a mental disorder. Any disorder involving an abnormality in behaviour i.e. a divergence from normal, can be so characterised as there is a mental manifestation of the disorder." (Ex. G).
222. Regarding this statement, the Respondents submitted that it did not assist the Complainant:
"... because the definition of attribute in the Act is not expressed to cover a divergence from the normal. It is expressed to include a malfunction of the body which includes a mental disease or psychological disorder. The evidence of Dr Bower was clear that the Complainant was not suffering from any malfunction of the body." (Respondents' final written submission).
223. I note that I do not accept the statement that, "The evidence of Dr Bower was clear that the Complainant was not suffering from any malfunction of the body." Dr Bower's evidence was that transsexualism is a biological disorder.
224. Regarding para. 220(c) above, Ms Menzies had sex reassignment surgery on 13 March 1998. She then recuperated for seven weeks, returning to work (for one day only) on 4 May 1998. In my view, Ms Menzies' transition program concluded at the end of the period of recuperation following surgery, that is, on or about 4 May 1998. In these circumstances, I do not accept the Respondents' submission that at the time Ms Menzies' employment was terminated, she was no longer a person with the attribute of impairment. In any event, I note that s. 7(2)(a) of the EO Act is relevant in this context.
Accepted principles of statutory interpretation, including the matters outlined in paras. 177 - 191 above.
225. When "impairment" was added as an attribute under the EO Act in 1982, the term was defined broadly. The Minister's Second Reading Speech gives no indication as to whether transsexualism was or was not intended to be included.
226. When one considers the definition of "impairment" in section 4 of the EO Act, the term is defined to mean:
227. Taking the first words of this provision, does transsexualism constitute a "malfunction of a part of the body"? In my view, and bearing in mind the evidence of Dr Bower that transsexualism is a disorder with a biological basis, the answer is yes. The word "malfunction" means to fail to function normally. In a transsexual person, there is a failure of a part of the body to function normally as the essence of the condition is dissonance or maladjustment between the person's sex as apparent from their physical body, and the person's sense of sexual identity.
228. If this analysis is incorrect, the latter words quoted ("... including a mental or psychological disease or disorder") are relevant. Dr Bower's evidence was that transsexualism has a biological basis that produces a psychological manifestation, that is, a firmly-held belief on the part of a transsexual that he/she is really of the opposite sex to that represented by his/her body. In my view, this amounts to a mental or psychological disorder within the meaning of those words in the definition of impairment. In saying this, I am relying on the current, ordinary meaning of the words in the context of an Act aimed at promoting equal opportunity and eliminating discrimination on the basis of certain attributes.
229. Dr Bower gave evidence (Ex. A, para. 7 and Ex. G, para. 5) that transsexualism (called "gender identity disorder") is included in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM IV). Given this, there is a congruence between the ordinary meaning of "mental disorder" in the context of the words "... including a mental or psychological disease or disorder" - that is, that "mental disorder" includes transsexualism - and the psychiatric meaning of "mental disorder" - that is, that the term also includes transsexualism. Although no evidence was given as to the use of DSM IV in Australia, I consider it is well-known that DSM IV is widely used within the medical profession in Australia.
230. As mentioned earlier, the EO Act may be described as remedial or beneficial legislation. According to accepted principles of legislative interpretation, such legislation should be interpreted "generously" (Pearce and Geddes, p. 15), consistent with the fair meaning of the language used. Bearing this in mind, and bearing in mind the objectives of the Act, particularly those articulated in s. 3(a) and (b), I consider there are clear grounds for finding that the condition of transsexualism is an "impairment" within the meaning of that term in s. 4 of the EO Act. I find, therefore, that the condition of transsexualism amounts to a "malfunction of a part of the body" in the definition of "impairment" in s. 4. I also find that the condition of transsexualism is "a mental or psychological ... disorder", that phrase being a sub-category of the term "malfunction of a part of the body".
231. Counsel for the Complainant contended that the condition of transsexualism also (or in the alternative) amounted to "malformation ... of a part of the body" in the definition of impairment (para (e)). I do not accept this contention as para. (e) of the definition of "impairment" relates to a "malformation or disfigurement", something which, in my view, is immediately visible. The condition of transsexualism is not, therefore, encompassed in this term.
232. Given that I consider that the condition of transsexualism fits within the ordinary meaning of the words used in para. (d) of the definition of impairment, it is not necessary to turn for guidance to the amending legislation (the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000)) which adds "gender identity" as an attribute. I simply observe that from time to time, as was mentioned above in paras. 188 - 189, amending legislation clarifies certain matters or puts them beyond doubt.
233. Regarding the Attorney-General's statement in the Second Reading Speech for the Equal Opportunity (Gender Identity and Sexual Orientation) Bill that, "The Equal Opportunity Act does not prohibit discrimination on the basis of a person's gender identity", it will be apparent that I have come to a different view with regard to this particular case.
234. In the circumstances, I find that Mr Waycott has contravened s. 14(b) of the EO Act by terminating Ms Menzies' employment on the basis of the attribute of impairment (that being Ms Menzies' transsexualism). In my view, because of Ms Menzies' transsexualism, Mr Waycott did not seek a response from her when Mr Hicks reported to Mr Waycott that the Phillip Morris job was "in a parlous state". Mr Waycott decided to terminate Ms Menzies' employment without according her basic fairness, and he took this course because of Ms Menzies' transsexualism. The contravention by Mr Waycott, Managing Director of the Second Respondent, is an act of the Second Respondent. (Para. 4 of the Complainant's Further Amended Particulars of Complaint is relevant along with para. 9 of the Further Amended Defence of the First Respondent). Both Respondents are therefore liable for the contravention of s. 14(b).
235. I also find that Mr Hicks, in the course of his employment, contravened s. 14(d) of the EO Act by subjecting Ms Menzies to a detriment, thus making the Second Respondent liable by virtue of s. 102 of the EO Act. Mr Hicks subjected Ms Menzies to a detriment when he presented Mr Waycott with an inaccurate and damaging report regarding Ms Menzies' management of the Phillip Morris contract. The report, stating that the contract was "in a parlous state", led to Mr Waycott terminating Ms Menzies' employment - with neither Mr Waycott nor Mr Hicks according Ms Menzies' basic fairness by asking her for an explanation about the alleged deficiencies in her management of the contract.
236. In para. 9 of these Reasons, the following three questions were identified for determination in this case:
(a) Was Ms Menzies' transsexualism a substantial reason for the decision to terminate her employment?
(b) If yes to (a), does transsexualism properly form the basis for a claim of discrimination under the EO Act?
(c) If yes to (a) and (b), what orders should the Tribunal make?
I answer questions (a) and (b) in the affirmative. Regarding (c), arrangements will be made for the Tribunal to deal with this further matter.
Menzies
Waycott & Anor [2001] VCAT 415
(1988) 17 NSWLR 158
(1913) 17 CLR 370
(1946) 73 CLR 70
(1978) 20 ALR 496
(1991) 99 ALR 295
The complaint under section 14 based on impairment was found proven. The complaint insofar as it alleged discrimination based on sex and/or physical features was dismissed. The Tribunal reserved the question of further orders.