Saffrim v 4U Services Pty Ltd (Human Rights) [2025] VCAT 1026

1. Under s 125(a)(ii) of the Equal Opportunity Act 2010 (Vic) ('the Act'), the second respondent is ordered to pay the applicant for loss and damage suffered as a consequence of the second respondent's proven breaches of the Act in the sum of $48,915.55.
2. Any application for costs must be made by email to VCAT and the other parties, with submissions in support, by 15 December 2025.
3. Any submissions in reply to any application for costs must be made by 12 January 2026.
4. VCAT proposes to determine any application for costs on the basis of documents alone.

1. Ahmad Saffrim was born in 1990 in Malaysia. He is a Malaysian citizen and identifies as Malay.
2. In early 2016, Mr Saffrim moved to Australia.
3. In April 2021, Mr Saffrim began working as a gardener for a business called 4U Services.
4. 4U Services is the trading name for a garden maintenance business operated by 4U Services Pty Ltd ('the Company'). David Donohoe is the sole director of the Company.
5. Mr Saffrim claims he was working for Mr Donohoe directly but that, if he was not, he was working for the Company. The Company and Mr Donohoe claim Mr Saffrim was working for the Company.
6. After working for approximately four months, Mr Donohoe told Mr Saffrim that he did not have any work for him and, after an exchange of text messages between Mr Saffrim and Mr Donohoe, Mr Donohoe sent Mr Saffrim a final payslip, ending his employment.
7. Mr Saffrim claims that:
   1. one of the other two gardeners Mr Saffrim worked with ('the other gardener') made racially offensive comments to Mr Saffrim about Asian people and, Mr Saffrim felt, treated Mr Saffrim like his servant;
   2. in late July 2021, Mr Saffrim told Mr Donohoe about the other gardener's comments and behaviour; and
   3. as a result, a few days later, after an exchange of text messages, Mr Donohoe ended Mr Saffrim's employment.
8. Mr Saffrim claims he was discriminated against on the basis of his race during his employment and then victimised when he complained about the discrimination.
9. In October 2021, Mr Saffrim made a complaint to the Victorian Equal Opportunity Human Rights Commission with the assistance of lawyers from Victoria Legal Aid.
10. The complaint was not resolved and Mr Saffrim has applied to VCAT under the Equal Opportunity Act 2010 (Vic) ('the Act'),[1] seeking orders that he be awarded damages for the discrimination and victimisation he claims to have suffered while employed.
11. Mr Saffrim subsequently applied to have Mr Donohoe joined as a respondent to the proceeding. After hearing from the parties in May 2024, I joined Mr Donohoe as the second respondent.
12. In support of the application, Mr Saffrim provided an amended particulars of claim and two witness statements, dated 27 June 2023 & 22 July 2024. Two witness statements and an affidavit from one of Mr Saffrim's legal representatives were also provided, along with submissions of fact and law.
13. In response, both respondents provided particulars of defence, two witness statements from Mr Donohoe dated 11 July 2023 & 11 July 2024, a statement from the other gardener dated 11 July 2023 and submissions of fact and law (including an email received 22 July 2024 from Mr Donohoe attaching an employment separation certificate for one of the gardeners who Mr Saffrim worked with).
14. I heard this application on 24 July 2024 and 16 September 2024. Mr Saffrim gave evidence at the hearings with the assistance of a Malay interpreter. Mr Donohoe also gave evidence at the hearings. The other gardener did not give evidence at the hearings.
15. I am aware of the length of time since that hearing. I apologise to the parties for the significant delay in providing these written reasons.

1. For Mr Saffrim's claim to succeed, I must decide:
   1. who Mr Saffrim's employer was;
   2. was Mr Saffrim discriminated against during his employment;
   3. if so, is Mr Saffrim's employer liable for the discrimination;
   4. whether one or both of the respondents authorised or assisted in any discrimination against Mr Saffrim;
   5. whether Mr Saffrim's employer or anyone else victimised Mr Saffrim; and
   6. if so, what remedy or remedies Mr Saffrim is entitled to.

1. Mr Saffrim claims that between April 2021 - July 2021 (the employment period), he was employed as a gardener by Mr Donohoe or, in the alternative, the Company.
2. The respondents claim Mr Saffrim was employed by the Company, not Mr Donohoe.
3. The parties agree that:
   1. in April 2021, Mr Saffrim responded to a job advertisement for a gardener on Indeed.com, providing a copy of his resume, in response to which he received a telephone call from Mr Donohoe to arrange an interview;
   2. on 19 April 2021, Mr Saffrim attended an interview with Mr Donohoe at Mr Donohoe's residential address at which Mr Donohoe offered him the job;
   3. during the employment period, Mr Saffrim worked five days per week and earned $32 an hour and worked with two other gardeners, although the other gardener was on leave in April 2021 and returned to work sometime in May 2021;
   4. each morning Mr Saffrim would receive a text from Mr Donohoe with details about the jobs for the day, would attend the office each morning where Mr Donohoe would provide further details of the jobs and what tasks he wanted each person to complete;
   5. Mr Saffrim would then drive a work vehicle to the relevant job site and after the other gardener returned to work in May 2021, Mr Saffrim and the other gardener always shared a work vehicle;
   6. Mr Saffrim's work involved gardening services at residential homes, offices and schools, and he mostly worked only with the other gardener, with a few occasions when all three gardeners worked on a large job and only one occasion when Mr Saffrim worked alone;
   7. the payslips issued to Mr Saffrim for his payments were issued in the name of "The Donohoe Family Trust" ('the Trust'); and
   8. the text message exchanges in July 2021 that ended with the termination of Mr Saffrim's employment were solely between Mr Saffrim and Mr Donohoe.
4. Mr Saffrim claims that at the interview on 19 April 2021 Mr Donohoe asked Mr Saffrim to sign a contract of employment but did not provide Mr Saffrim with a copy of the contract. Mr Donohoe denies this. He claims Mr Saffrim was provided with and signed a tax declaration form.
5. Mr Saffrim submits that, in determining who his employer is, VCAT should consider the totality of the relationship between all involved parties, relying on Alvarez Nino v Kuksal (No 4) [2023] FedCFamC2G 1051 (24 November 2023) ('Kuksal'), in which Forbes J states:

When it is clear that a worker is employed, but it is not clear which of two legal persons is the employer, it is not appropriate to conclude that the worker is not an employee. Rather, Courts will draw inferences necessary to ascertain which of the two is the employer.

When resolving the issue of the identity of the employer due regard is paid to the fact that in informal contractual arrangements like employment the parties do not always appreciate and observe legal niceties ... The answer to the question involves a search "for substance and reality" ...

... It is open to the Court to look at the totality of the relationship, including post-contractual conduct, to determine who, in fact, was the contracting party.[2]

1. Mr Saffrim submits the factors to be considered (without necessarily being determinative) in assessing the totality of the conduct of the parties throughout the employment relationship are:
   1. any available written agreements between the parties;
   2. which party issues payslips or income statements;
   3. which party has practical and legal control and direction of the employees;
   4. which party made decisions about hiring;
   5. which party made decisions about disciplinary issues;
   6. which party made decisions about the levels of remuneration;
   7. which party paid remuneration;
   8. which party communicated with employees about leave; and
   9. which party made decisions about the termination of employment.
2. Mr Donohoe does not submit I should take a different approach to assessing the nature of the relationships between Mr Saffrim and the respondents, and I adopt the approach set out in Kuksal.
3. There is no evidence of any written employment agreement between Mr Saffrim and either of the respondents. Mr Saffrim initially claimed that he had signed a contract of employment after being offered employment by Mr Donohoe in April 2021 but later stated that he could not remember exactly what the document that he signed was.[3] The absence of a written employment agreement between Mr Saffrim and either of the respondents weighs neither in favour nor against a finding that Mr Donohoe was Mr Saffrim's employer.
4. The payslips issued to Mr Saffrim were issued to him in the name of the Trust with a recorded ABN on the payslip. The ABN on the payslip is the same ABN as for the business name "4U Services".[4] Mr Donohoe claims the Trust runs 4U Services.
5. I find that if the Company had issued the payslips then the payslips would be issued in the name of the Company, rather than the Trust. I am not satisfied the use of the same ABN as for the business name "4U Services" means the payslips were issued by the Company. I consider that the fact the payslips were issued by the Trust suggests Mr Saffrim was employed by Mr Donohoe rather than the Company.
6. Mr Saffrim answered an advertisement with the business name "4U Services" and was interviewed for the advertised job by Mr Donohoe at Mr Donohoe's residential address. Mr Donohoe made all decisions about whether to hire Mr Saffrim, where and with who Mr Saffrim worked, Mr Saffrim's level of remuneration and whether to terminate his employment.
7. While Mr Donohoe is a director of the Company, an ASIC company extract for a company called Mini Plant Hire Pty Ltd shows it was registered in May 2021 with Mr Donohoe's wife as sole director. Mr Donohoe claims that the other gardener was, at all times relevant to this application, employed by Mini Plant Hire.
8. I find that if Mr Saffrim had been employed by the Company it is more likely the other gardener would have been employed by the Company as well. The fact that the other gardener was apparently employed by a different company but worked at the same time and together with Mr Saffrim weighs in favour of a finding that Mr Saffrim may not have been employed by the Company but rather by Mr Donohoe directly.
9. Having considered all of the factors set out above, I find that the totality of the relationships between Mr Saffrim, Mr Donohoe and the Company leads to the conclusion that Mr Saffrim was employed directly by Mr Donohoe and not by the Company.

Was Mr Saffrim discriminated against during his employment?

1. Mr Saffrim alleges that during the time they worked together between May - July 2021, the other gardener made a number of racially offensive comments to Mr Saffrim about Asian people.
2. Mr Saffrim provided examples of occasions on which the other gardener:
   1. stated that Indian and Chinese clients looked for faults in their gardening work so that they could pay less;
   2. repeatedly stated that Indian and Chinese clients were "stingy" and "cheap";
   3. stated that he did not want to work with clients of Asian descent because they had "filthy houses", a "bad culture of living" and "do not look after" their houses and gardens; and
   4. referred on one occasion to a client who appeared to be of Asian descent as a "filthy Asian" and a "fucking Asian",

1. Mr Saffrim claimed he never heard the other gardener make similar comments about clients who were white and that the other gardener's comments made Mr Saffrim feel uneasy and uncomfortable about going to work and spending the day with him.
2. Mr Saffrim also alleged that the other gardener repeatedly delegated his own tasks to Mr Saffrim when they worked together even though, as Mr Saffrim understood it, Mr Donohoe had given those tasks to the other gardener. Mr Saffrim said he felt as though the other gardener was treating him like his servant.
3. Mr Saffrim stated that, sometime in June 2021, he decided to stand up to the other gardener by saying words to the effect of "I can help with your work but I need to finish my own work first", in response to which the other gardener became angry.
4. Mr Saffrim says that, on Friday, 23 July 2021, after finishing work for the week, he approached Mr Donohoe and told him about the other gardener's racially derogatory comments and behaviour. He says he told Mr Donohoe that he felt uncomfortable about working with the other gardener and that Mr Donohoe responded with words to the effect of "I will have a think about what to do about it".
5. Mr Saffrim also alleges that:
   1. after Mr Donohoe told Mr Saffrim there was no work for him on 26 July 2021, Mr Saffrim and the other gardener spoke on the telephone;
   2. during that conversation, Mr Saffrim explained to the other gardener what Mr Saffrim had complained about; and
   3. the other gardener responded with words to the effect of "I didn't know that you would take offence to those comments. I will be more careful about the way I speak to you in the future".
6. In his witness statement, the other gardener denies having made any of the comments. He alleges that:
   1. he had noticed Mr Saffrim lacks certain gardening skills;
   2. that it was not uncommon for complaints to be received from customers about the time spent by Mr Saffrim in performing his scheduled job tasks; and
   3. he had noticed that Mr Saffrim struggled, occasionally, to communicate with customers and the other gardener.
7. The other gardener described a time in June 2021 when he required Mr Saffrim to finish his tasks because the other gardener was anxious after receiving a call from his fiancée who was going into labour. The other gardener denied being angry about Mr Saffrim's response.
8. The other gardener also denied saying anything about comments he was alleged to have made in the telephone conversation with Mr Saffrim on 26 July 2021. The other gardener claims he did not know about Mr Saffrim's complaint to Mr Donohoe at that time. The other gardener claims his reason for speaking with Mr Saffrim on that day was to locate pruning tools which the other gardener needed for work.
9. Mr Donohoe, in his first witness statement, denies that Mr Saffrim told him about the comments and other behaviour displayed by the other gardener to Mr Saffrim or that Mr Donohoe said he would have to think about what to do about any complaint. Mr Donohoe repeated his denials when giving evidence at the hearing.
10. At the hearing, Mr Donohoe put to Mr Saffrim that he was not telling the truth when he alleged the other gardener had made the comments. Mr Saffrim, having confirmed the contents of his witness statement under oath, stated that he was telling the truth. Mr Donohoe put to Mr Saffrim that if the comments had been made Mr Saffrim would have referred to them in the text messages he sent to Mr Donohoe (the relevant exchanges of text messages between Mr Saffrim and Mr Donohoe are set out in Annexure B below). Mr Saffrim responded that he had not referred to the comments in the text messages because he had spoken to Mr Donohoe about them in person.
11. The other gardener did not give evidence at hearing. I asked Mr Donohoe why the other gardener was not available to answer questions about his witness statement. Mr Donohoe told me that he had asked the other gardener to attend the hearing but the other gardener had refused to do so. I advised Mr Donohoe that I may infer that the reason for the other gardener's unavailability was because the answers he may give at hearing would not assist the respondents.[5]
12. Given Mr Saffrim was willing to answer questions from the respondents about what he said happened while he was employed by Mr Donohoe but the other gardener was not willing to answer questions about his witness statement, I prefer Mr Saffrim's account of what the other gardener said and did while Mr Saffrim and the other gardener worked together. I infer that the other gardener was not available to answer questions about the contents of his witness statement because the answers he gave when challenged would not have assisted the respondents. As a result, I give very little weight to the contents of the other gardener's witness statement as an account of what happened when he and Mr Saffrim were working together.
13. As I prefer Mr Saffrim's account of what happened while he was working with the other gardener, I have considered whether his account can be consistent with Mr Donohoe's claims that Mr Saffrim did not tell Mr Donohoe about what the other gardener had been saying and doing when they were working together. It is possible that Mr Saffrim's account of what happened while he was working with the other gardener is accurate but not his account of having told Mr Donohoe about what happened.
14. However, I consider it unlikely that Mr Saffrim would not be accurate in his account of what he told Mr Donohoe when he has been accurate in his account of what happened while he was working with the other gardener.
15. For reasons set out below,[6] I prefer Mr Saffrim's account of his interactions with Mr Donohoe about Mr Saffrim not being provided any more work. Accordingly, I prefer Mr Saffrim's account of having told Mr Donohoe about what happened while Mr Saffrim was working with the other gardener over Mr Donohoe's denial that Mr Saffrim told him about this.
16. In light of the above, I find that the other gardener did say what Mr Saffrim alleges he said and did, and did delegate his tasks to Mr Saffrim in the way described by Mr Saffrim.
17. I accept, as stated by Mr Saffrim, that he, as an Asian man, felt uneasy and uncomfortable about working with the other gardener because of the comments the other gardener made. As he stated, the comments made him "feel humiliated and insulted ... [and] ... that as an Asian person I did not belong in Australian society."
18. I am satisfied that the comments and conduct of the other gardener humiliated and denigrated Mr Saffrim in a way that amounts to detriment under the Act.
19. Accordingly, by being required to work with the other gardener while the other gardener made comments and engaged in conduct that humiliated and denigrated Mr Saffrim, Mr Saffrim was discriminated against by the other gardener and by Mr Donohoe as his employer.

Is Mr Saffrim's employer liable for the discrimination?

1. Mr Saffrim claims that one of the respondents must be liable for the other gardener's discriminatory behaviour as the other gardener's employer under s 110 of the Act.
2. To determine whether the other gardener's employer is liable for the other gardener's discriminatory behaviour, I must first determine who the other gardener's employer was at the time he engaged in that behaviour.
3. The evidence provided about the other gardener's employer has been unclear. While Mr Saffrim has claimed the other gardener was employed by a business owned and operated by Mr Donohoe (being the Company), he has not claimed that the other gardener was actually employed directly by Mr Donohoe (as Mr Saffrim has claimed, and I have accepted, he himself was). Mr Donohoe has at times claimed the other gardener was employed by the Company and at other times appears to have denied this and claimed the other gardener was employed by Mini Plant Hire.
4. On balance, while it would be possible for me to infer that the overall circumstances of the other gardener's employment lead to a finding that the other gardener was directly employed by Mr Donohoe (as I have found for Mr Saffrim), I am not satisfied on the balance of probabilities there is sufficient specific evidence to support this finding in relation to the other gardener.
5. Further, given the varying evidence presented by Mr Donohoe about the other gardener's employer, I am unable to reach a finding as to whether the other gardener's employer was the Company or Mini Plant Hire.
6. As I have been unable to determine that the other gardener's employer was either of the respondents, I find that neither Mr Donohoe nor the Company are vicariously liable as employers for the other gardener's discriminatory behaviour.

Did either Mr Donohoe or the Company authorise or assist discrimination against Mr Saffrim?

1. Mr Saffrim claims that Mr Donohoe, as the sole person in charge of day-to-day management and operation of the gardening business, did not take any action against the other gardener and terminated Mr Saffrim's employment after Mr Saffrim complained about the other gardener's discriminatory behaviour. Mr Saffrim claims this means Mr Donohoe authorised the discrimination I have found occurred.
2. Determining this aspect of the claim and the claim of victimisation requires me to consider the evidence provided by the parties about what the substantial reason was for the termination of Mr Saffrim's employment.
3. As noted above, Mr Donohoe denies that Mr Saffrim told him anything about the discriminatory behaviour of the other gardener. However, I have not accepted that denial. Mr Donohoe also claims that he terminated Mr Saffrim's employment because of a downturn in work for his business caused by the Covid 19 related lockdowns in 2021 and that he told Mr Saffrim that was the reason when they spoke on 26 July 2021.
4. Mr Donohoe claimed that:
   1. the Covid 19 lockdowns between 28 May - 10 June & 16 July - 27 July 2021 had prevented his employee gardeners from providing their gardening services to individual property owner or occupier customers;
   2. many of his business' customers were elderly and did not want people they did not know attending their properties, even if the lockdown restrictions did not prevent outdoor gardening work;
   3. as a result of the lockdowns, many individual property owners and occupiers had elected to work from home and then to perform gardening work on their properties themselves rather than engaging Mr Donohoe's business to do that work;
   4. as a result, his gardening business had experienced significant job cancellations by individual property owner or occupier customers; and
   5. this was the reason he terminated Mr Saffrim's employment, as well as the reason for ceasing the employment of the third gardener employed by the business in January 2022 and, at around the same time, transitioning the employment of the other gardener into another business run by Mr Donohoe.
5. Mr Donohoe claimed that in the week before Mr Saffrim's employment was terminated, he employed Mr Saffrim to work at Mr Donohoe's home, which was the only reason Mr Saffrim was able to work the number of hours he did during that last week.
6. As noted above Mr Donohoe claims that his only conversation with Mr Saffrim about the lack of work was on 26 July 2021, when Mr Donohoe told Mr Saffrim that there was very little work to be perform and that as the least experienced staff member any work that needed to be done would be undertaken by the other gardener and the third gardener. He claims that the only other communications about the end of Mr Saffrims' employment are the exchange of texts set out in Appendix B.
7. Mr Saffrim claims that Mr Donohoe's justification for terminating his employment due to Covid maintain pandemic restrictions and associated job cancellations should not be accepted because:
   1. during the period of Mr Saffrim's employment, Victorian government-imposed lockdown restrictions did not permit provision of outdoor gardening services during only two periods: 28 May - 3 June 2021 & 16 - 20 July 2021;[7]
   2. at all other times during Mr Saffrim's employment gardening services could be provided if they were operated solely outdoors and physical distancing could be maintained, provided the services were performed by five people or less;[8]
   3. Mr Saffrim's payslips make clear that after the first restriction he continued to work consistent full-time hours and worked at least 38 hours each week during the six weeks his employment was terminated;[9]
   4. Mr Donohoe did not at any time:
      1. advise Mr Saffrim that Mr Saffrim was suspended from duties because of Covid 19 pandemic restrictions, that his position had been made redundant or that he had been dismissed; or
      2. provide Mr Saffrim with any other reason for why his employment was terminated; and
   5. neither of the other employees were suspended or had their employment terminated during the week after Mr Saffrim made his complaint about the other gardener; and
   6. neither respondent provided any documentary evidence showing how the Covid 19 restrictions impacted the business in a way that required the termination of Mr Saffron's employment.
8. Overall, I found Mr Donohoe's evidence about his reasons for terminating Mr Saffrim's employment unconvincing. His explanation of those reasons appeared to change over the course of the proceeding and aspects of his explanations appeared self-serving and contradictory.
9. There is no question that the Covid 19 pandemic restrictions in place in Victoria over the course of the first half of 2021 had a negative effect on the operation of all businesses providing services to the public and that all businesses of that sort, including Mr Donohoe's, were required to assess what the ongoing effects on the business of further restrictions might be.
10. However, in this case, I am not satisfied that these effects, or Mr Donohoe's assessment of what the further effects might be, were the substantial reason for the termination of Mr Saffrim's employment. I make this finding for the following reasons.
11. Firstly, the nature of the outdoor gardening business run by Mr Donohoe meant that it was able to continue to provide services throughout the time of Mr Saffrim's employment (other than for the six-day period between 28 May - 3 June 2021). This is shown by the number of hours Mr Saffrim was able to work during that time, including during the week before the termination of his employment.
12. Secondly, neither Mr Donohoe nor the Company, despite claiming Mr Donohoe was expecting there to be a downturn in his business after the pandemic restrictions were imposed from May 2021 and that there was in fact a downturn, provided VCAT any documentary financial evidence of the circumstances of his business at any time in 2021 or 2022, or any other time.
13. I infer, as Mr Donohoe was advised at hearing that I might, that the reason he did not provide any financial evidence of this sort was because it would not assist his claim; that is, because the documentary evidence would not show that his gardening business had suffered financially at any time in 2021 or 2022.
14. While I accept that the third gardener's employment was also terminated in early 2022 and that the other gardener now works for another business run by Mr Donohoe, I am not satisfied these events are sufficient evidence of any financial downturn in Mr Donohoe's business when there could be several other explanations for why these employment changes were made.
15. Thirdly, I do not accept Mr Donohoe's claim that Mr Saffrim only worked at Mr Donohoe's home in the week before his employment was terminated. Mr Donohoe first stated that this is what had happened at the hearing and did not claim this was the case in the respondents' defence, either of his witness statements or the respondents' submissions of fact and law (including the email from Mr Donohoe received 22 July 2024). I find that if this is, in fact, what had happened it would have been referred to in some of the respondents' written submissions. As a result, I prefer Mr Saffrim's account that he did not only work at Mr Donohoe's home in the week before his employment was terminated.
16. Fourthly, I find that if the financial downturn caused or expected to be caused by the Covid 19 pandemic restrictions were the reason for the termination of Mr Saffrim's employment it is more likely than not that Mr Donohoe would have made reference to this in his exchange of texts with Mr Saffrim between 25 - 28 July 2021.
17. At hearing, Mr Donohoe claimed the reason he did not refer to the effect of the Covid 19 pandemic restrictions on his business in the exchange of texts with Mr Saffrim was because he had told Mr Saffrim about those effects when they spoke on 23 July 2021. However, Mr Donohoe also stated that he had concerns about Mr Saffrim's level of English language speaking ability and that he considered that some things could "get lost in translation".
18. I find it inconsistent for Mr Donohoe to have that concern but then not confirm any reasons for the termination of employment in writing, including in the text messages to Mr Saffrim. It is more likely than not that if the effect of the Covid 19 pandemic restrictions was the reason for terminating his employment, Mr Donohoe would have made reference to that in the text messages to Mr Saffrim.
19. I consider it more likely than not the reason for the lack of explanation in the text messages is because the reason for termination was not the effect of the Covid 19 pandemic restrictions on Mr Donohoe's business but rather a reason Mr Donohoe did not wish to disclose, being the fact that Mr Saffrim had complained about the comments and other gardener's behaviour.
20. Accordingly, while I accept that the Covid 19 pandemic restrictions had some effect on the financial position of Mr Donohoe's business, I do not accept that any such effect was enough to require the termination of Mr Saffrim's employment.
21. In light of the above, I do not accept Mr Donohoe's explanation for the termination of Mr Saffrim's employment.
22. I find that Mr Donohoe's only substantive response to Mr Saffrim's complaint about the comments and the other gardener's behaviour was, in effect, the termination of Mr Saffrim's employment. I am comfortably satisfied that it is more likely than not that the substantial reason for the termination of Mr Saffrim's employment was because he had complained about the comments and the other gardener's behaviour.
23. In effect, to resolve the complaint Mr Donohoe chose to continue with the employment of the other gardener and terminate Mr Saffrim's employment. I find that in doing so Mr Donohoe authorised the other gardener's discriminatory behaviour towards Mr Saffrim.

Did Mr Saffrim's employer or anyone else victimise Mr Saffrim?

1. I have found that Mr Donohoe was Mr Saffrim's employer and that Mr Donohoe terminated Mr Saffrim's employment because Mr Saffrim complained about discriminatory behaviour by the other gardener.
2. I am satisfied that:
   1. Mr Saffrim's complaint is an allegation that meets the requirements of s 104(g); and
   2. by terminating his employment because of the complaint, Mr Donohoe subjected Mr Saffrim to detriment for the purposes of s 104.
3. Accordingly, I find that Mr Donohoe victimised Mr Saffrim because of Mr Saffrim's complaint about the other gardener's comments and behaviour, which occurred while Mr Saffrim was employed by Mr Donohoe.

1. Mr Saffrim seeks the following remedies for having been discriminated against and victimised while employed by Mr Donohoe:
   1. compensation for economic loss in the sum of $13,918.55; and
   2. general damages in the sum of $60,000, made up of $20,000 compensation for discrimination and $40,000 compensation for victimisation.
2. The respondents rejected any liability for compensation to Mr Saffrim but otherwise did not make any submissions about what amount of compensation Mr Saffrim should be entitled to if either or both of the respondents were found to have contravened the Act.

1. I accept the following evidence, which was not disputed by the respondents, provided by Mr Saffrim relevant to his economic loss:

1. while employed by Mr Donohoe, Mr Saffrim earnt on average $1188.57 per week;

1. after his employment was terminated, Mr Saffrim receive no Social Security payments and had no income; 2. in late September or early October 2021, Mr Saffrim undertook fencing work for one week, for which he was paid $582.50; and 3. Mr Saffrim was eventually able to secure full-time employment as a metal assembly worker, commencing on 18 October 2021.
2. In light of the above, Mr Saffrim claims he suffered economic loss that is the equivalent of 12 weeks and one day of unemployment, less the income he received for the week of fencing work, a sum of $13,918.55.
3. Applying the relevant principles referred to in Annexure A, I am satisfied that as a direct result of the discrimination and victimisation Mr Saffrim suffered at the hands of Mr Donohoe, he was without any income, other than for the week of fencing work, for the period of time Mr Saffrim claims.
4. While the ongoing Covid 19 pandemic restrictions may have had some effect on Mr Saffrim's ability to obtain further employment, this claim was not made by Mr Donohoe and there is no evidence before me as to how I could assess what, if any, portion of the time it took Mr Saffrim to obtain further employment could be attributed to the ongoing Covid 19 pandemic restrictions.
5. I am otherwise satisfied that, in the circumstances, Mr Saffrim appears to have made reasonable efforts to mitigate his loss by finding further employment as soon as he was able to do so.
6. As a result, I am satisfied that Mr Saffrim is entitled to compensation for economic loss in the sum of $13,918.55, to be paid by his employer, Mr Donohoe.

1. I am satisfied that Mr Saffrim was subjected to discriminatory comments and other behaviour by the other gardener in the course of his employment. I accept that he found this behaviour stressful and upsetting, that he felt humiliated and insulted and "that as an Asian person I did not belong in Australian society."[10]
2. I have found that when the other gardener's comments and behaviour were brought to his attention, Mr Donohoe's response to Mr Saffrim's complaint was to end Mr Saffrim's employment and not to take any other action in relation to the other gardener's behaviour. I have found that by responding to the complaint in this way, Mr Donohoe authorised the other gardener's discriminatory behaviour and victimised Mr Saffrim by ending his employment.
3. I accept that Mr Saffrim felt hopeless, isolated and depressed after his employment was ended in this way. I find that his feelings of vulnerability and isolation were compounded by his temporary visa status in Australia, which significantly limited his access to supports while unemployed.
4. Taking into account the above factors and the relevant authorities referred to in Annexure A, I am satisfied it is appropriate to award Mr Saffrim compensation in the sum of $15,000 for the discrimination he has suffered and $20,000 for the victimisation he has suffered.
5. I have found that:
   1. Mr Donohoe in effect directly employed Mr Saffrim;
   2. by requiring Mr Saffrim to work with the other gardener, Mr Donohoe discriminated against Mr Saffrim and authorised the other gardener's discriminatory behaviour; and
   3. Mr Donohoe victimised Mr Saffrim by terminating his employment.
6. Accordingly, I am satisfied:
   1. Mr Donohoe is directly responsible for the losses suffered by Mr Saffrim;
   2. that it is Mr Donohoe who must compensate Mr Saffrim for the losses he has suffered; and
   3. Mr Donohoe must pay Mr Saffrim the total sum of $48,918.55.

1. I have decided:
   1. Mr Donohoe was Mr Saffrim's employer;
   2. the other gardener engaged in discriminatory behaviour to the detriment of Mr Saffrim;
   3. by requiring Mr Saffrim to work with the other gardener Mr Donohoe discriminated against Mr Saffrim;
   4. further, Mr Donohoe authorised the other gardener's discriminatory behaviour;
   5. Mr Donohoe victimised Mr Saffrim as a result of Mr Saffrim's complaint about the other gardener's behaviour; and
   6. as a result, Mr Saffrim is entitled to compensation in the sum of $48,918.55, to be paid by Mr Donohoe.
2. Accordingly, I have ordered that Mr Donohoe must pay Mr Saffrim the sum of $48,918.55.

1. Mr Saffrim seeks costs against the respondents.
2. I am satisfied it is likely to be appropriate to consider Mr Saffrim's application for costs on the basis of documents alone (that is, "on the papers") and so have made orders to this effect.

An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; or

(b) by dismissing the employee or otherwise terminating his or her employment; or

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(d) by subjecting the employee to any other detriment.

1. In s 4, an employer is defined as a person:
   1. who employs another person under a contract of service, whether or not under a federal agreement or award; or
   2. engages another person under a contract for services;
2. An employee is relevantly defined as a person:
   1. employed under a contract of service, whether or not under a federal agreement or award; or
   2. engaged under a contract for service.
3. Employment is relevantly defined in similar terms.
4. Detriment is defined in s 4 as including "humiliation and denigration". Racist comments by co-workers have been found to amount to humiliation and denigration.[11]
5. Section 103 states that a person must not victimise another person.
6. Section 104 relevantly states that:

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

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

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

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

1. Under s 105, a person must not request, instruct, induce, encourage, authorise or assist another person to contravene the parts of the Act relevant to this application.
2. Section 109 provides that if a person in the course of employment discriminates against someone or engages in any conduct that would, if engaged by the person's employer, amount to discrimination, both the person and the employer must be taken to have engaged in discrimination.
3. Section 110 provides that an employer is not vicariously liable for a contravention by an employee under s 109 if the employer proves, on the balance of probabilities, that the employer took reasonable precautions to prevent the employee from contravening the Act.
4. Under section 125(a)(ii), VCAT may order that a person pay to the applicant, within a specified period, an amount VCAT thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of a contravention of the Act.
5. The principles VCAT applies in assessing damages under the Act have been usefully set out in Kumari v Bervar Pty Ltd (Human Rights) [2023] VCAT 21, [9] - [12], noting that, in that case, the applicant was awarded $7,000 in compensation as general damages for a single discriminatory statement about their race and $4,000 in general damages for a single act of victimisation.
6. Awards of general damages should be made "as appropriate for the individual case having regard to the facts and circumstances and the contraventions proved".[12]
7. The purpose of the award of damages is to attempt to measure the hurt that has been done to a complainant by the respondent's act of discrimination or victimisation[13] with VCAT's assessment taking into account the general standards prevailing in the community.
8. The starting point in relation to awards for discrimination for noneconomic loss is that the amount should not be minimal, as that would trivialise or diminish respect for the public policy to which the Act gives effect, but also not excessive, as that would damage respect for that public policy.[14]

[1] References to sections of legislation in this decision are references to sections of the Act unless otherwise stated. Relevant law is set out in Appendix A to this decision.

[2] Kuksal [274] - [275] & [286].

[3] Witness statement of Mr Saffrim dated 27 June 2023 [5] & Witness statement of Mr Saffrim dated 4 July 2024 [5].

[4] The employment separation certificate records the employer details to be "4U Services" with an ABN the same ABN as recorded on Mr Saffrim's payslips.

[5] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[7] Witness statement of Jessie Layman dated 27 June 2023, annexures JL-1 - JL-5 & JL - 8 - JL - 10.

[9] Witness statement of Mr Saffrim dated 207. June 2023, annexure AS-2.

[10] Witness statement of Ahmad Saffrim dated 27 June 2023 [46].

[11] Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd & Anor [2001] VCAT 1706 (8 August 2001).

[12] GLS v PLP (Human Rights) [2013] VCAT 221 [273].

[13] ZBL v Olivo (Human Rights) [2021] VCAT 850 [58].

[14] Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049 [83].