Victorian Civil and Administrative Tribunal|2007-08-02

Walgama v Toyota Motor Corporation Australia Ltd (Anti Discrimination) [2007] VCAT 1318 (2 August 2007)

Anti-discrimination List; Allegations of racial and industrial activity, discrimination, victimisation and sexual harassment; Equal Opportunity Act 1995 (Vic) sections 8, 14, 85, 98, 102.

27, 28, 29 March; 30, 31 May; 1 June; 9, 10 and 16 July 2007

Walgama v Toyota Motor Corporation Australia Ltd (Anti Discrimination) [2007] VCAT 1318

Ms C. Serpell of Counsel instructed by Ryan Carlisle Thomas

Mr Jonathan Forbes of Counsel instructed by Freehills

Mr Walgama was born in Sri Lanka and lived there until he was 32 years old. He migrated to Australia in 1989. As a worker in Sri Lanka he had been an active unionist and at one stage held the office of shop steward.
In March 1989 he began work with Toyota Motor Corporation at its plant in Dandenong. In November 1993 he took up the post of maintenance fitter in the Paint Shop Maintenance Group at Toyota's North Altona Plant. This plant works two shifts - a 'day shift' starting early in the morning and an afternoon shift. When Mr Walgama started at the Paint Shop in 1993 he was rostered on day shift. Later he was placed on a rotating shift working day shift one week and afternoon shift the other. During his time at the Paint Shop he was involved in a special company project, the implementation team for which was known as 'the Dirt Group'. The purpose of the project was to minimise the incursion of dirt in the paint shop. Mr Walgama's work on the Dirt Group took him to Japan, where Toyota's head office is situated, for some two weeks. His time as a Dirt Group member included approximately three to six months back at North Altona to implement the project. He was on permanent day shift. When his work on the special project ended, despite his wish for personal and family reasons to continue on permanent day shift, he was told he would have to work on the afternoon shift. He was told that no permanent day shift jobs were available in Paint Shop maintenance; nevertheless, he says, that another employee of lesser seniority was appointed to permanent day shift work in Paint Shop maintenance. He sought assistance from Mr Tony Carvalho who was at that time shop steward in the Paint Shop Maintenance Group for the Automotive, Food, Metal, Printing and Kindred Industries Union. Despite the rather lengthy title held by this union, it is customarily referred to as the 'AMWU'. Mr Walgama joined this union when he commenced employment with Toyota. Mr Carvalho, apart from being shop steward in the Paint Shop Maintenance Group, was also at that time the Senior Site Co-ordinator for the union, that is, the AMWU's Senior Shop Steward at North Altona. The AMWU is the largest union on site and over 90% of employees at Toyota's North Altona site eligible for membership of the AMWU are in fact members of that union.
In the event, no day shift appointment was offered to Mr Walgama. He says that he was unfairly treated in this regard and that the decision to deny him permanent day shift work in Paint Shop maintenance was as a result of the influence exercised by Mr Carvalho as the AMWU's Senior Shop Steward. Toyota denies this.
In the event, Mr Walgama was transferred to permanent day shift within the Press Shop Maintenance Group at the plant. The Press Shop provides pressed metal components for motor vehicles such as doors and the Maintenance Group provides maintenance and repair facilities to keep the production line operating efficiently. Mr Walgama being unhappy with this transfer regarded it as purely temporary. For some time he continued to use the locker allocated to him in the Paint Shop Maintenance Area. It was only following the intervention of Mr Nick Atsiaris, who had recently taken up an appointment as Assistant Manager Press Maintenance at North Altona, that Mr Walgama moved his belongings to a locker in the Press Maintenance Area around February 2004.
Mr Walgama had been transferred to the Press Shop as long ago as 22 October 2001.
On 3 September 2002 he made a complaint to the Equal Opportunity Commission relative to the refusal of permanent day shift work for him in the Paint Shop and his transfer to Press Shop Maintenance. The respondents to this complaint were his superior in Paint Shop Maintenance, Mr Malcolm Tucker and Toyota. This complaint was ultimately referred to the Tribunal as Proceeding A63/2003 and was settled on confidential terms in or about July 2003.
The complaint also raised issues as to his trade advancement within Toyota. The highest grade for tradesmen employed by Toyota at Altona is 'TR6'. Mr Walgama is graded TR5. The process of advancement from grading TR5 to TR6 requires, amongst other things, a 'sign off' from the applicant's supervisor as to the competence and suitability of the applicant, a 'sign off' from the applicant's shop steward and the completion of a process improvement project approved by Toyota. In his complaint dated 3 September 2002 Mr Walgama complained:

I was not offered an opportunity to achieve this task since October 2000.

The issue of advancement to TR6 is, I have been told, a matter dealt with in the confidential terms of settlement. Mr Walgama was over the period of the hearing, engaged in the project which should secure his advancement to the grade 'TR6'. Mr Walgama made an application for advancement to TR6 as long ago as 2000. His then supervisor in Paint Shop Maintenance 'signed off' this application, though it seems his shop steward, Mr Carvalho did not. Mr Walgama complains that he was initially assigned to a project in the Paint Shop in 2000 which would have led to advancement to TR6 but was removed from that project without notice or explanation. Mr Walgama believes that his failure to advance was as a result of a veto imposed upon him by Mr Carvalho who would not 'sign off' his application. Mr Walgama was offered a project in the Press Shop maintenance area in 2006 but was told that this project could be undertaken only in the course of work on the afternoon shift. Given that Mr Walgama's unwilling transfer to Press Shop maintenance occurred to enable him to be on permanent day shift, he did not pursue this application beyond enquiring if the project could be done on day shift.
Mr Walgama had made other complaints of discrimination and harassment reaching back to 1995. In late 2003 or early 2004 Mr Walgama wrote a letter of complaint to the National Secretary of the AMWU with copies to senior Toyota executives. The letter was as follows:

For more than two years I have been directly and indirectly racially discriminated, victimised and unfairly treated by a senior union representative. As I am an AMWU finance member I have support the union in every industrial action and individual dispute. I complain to AMWU Trade Victorian Branch and head office about these matters; unfortunately the organisers have ignored these matters and haven't done anything. Other union members are unaware of my treatment, its about time they knew, that there are different rules for one group of people and there are rules for others. I think the union has a double standard policy, in some cases the union asks us to join industrial action and in others nothing is done.

I have worked under a few different unions and representatives in other countries as well as Australia. Only senior union representative AMWU Trade have discriminated, threatened, lied and unfairly treating me in Australia.

Unfortunately some managers of this company are accepting and supporting discrimination, thuggery and unfair actions by union representatives. I don't accept any discrimination against a financial member by union representatives or union officials. I am working hard and learning to further my career; unfortunately senior union representatives put me down and restricted my career path. I don't think any Australian or multi-cultural society will accept any discrimination against their own union members. I am not participating any union meeting or any union activities until union treat me fairly and equally remove this thuggery union rep.

The 'thuggery union rep' referred to in the letter was apparently Mr Carvalho.
Unsurprisingly in light of the very grave allegations made in the letter the union's national leadership referred the matter for investigation to AMWU State Organiser, Paul Wisniewski. In January 2004 Mr Wisniewski made contact with Ms Zandy Fell, Toyota's Labour Relations Manager at Altona North. According to Ms Fell, Mr Wisniewski was a highly respected union organiser and as Toyota's representative, she was keen to assist Mr Wisniewski. Mr Wisniewski suggested that a meeting be conducted with Mr Walgama 'to resolve the issues [he] had raised in his letter to Doug Cameron'. Ms Fell said that she agreed to attend the meeting:

However I told Paul very clearly that I was not going to re-visit any of the issues which Toyota had already resolved with VJ, in the confidential settlement which had been negotiated following VJ's EOCV complaint. I said that Toyota had settled those matters with VJ and that they were not open for re-negotiation or discussion.

The meeting held on 3 February 2004 was chaired by Mr Wisniewski in a meeting room at Toyota's plant. Mr Walgama says that he was summoned to that meeting by his AMWU Shop Steward, Mr Laurie Grima. Those present at the meeting were Mr Wisniewski, Ms Fell, Mr Carvalho, Mr Nick Atsiaris and Mr Malcolm Tucker, a Paint Shop Manager who had been the subject of a previous complaint by Mr Walgama.
During the meeting Mr Carvalho read out the letter which Mr Walgama had sent to Mr Cameron and appeared to be very angry. The meeting was relatively short. Mr Walgama became overwrought and had to leave. Ms Fell said that Mr Walgama was very upset and was 'angry at Tony [Carvalho], Paul [Wisniewski] and the AMWU'. Mr Atsiaris and Mr Grima attempted to console Mr Walgama after he left the meeting. Mr Walgama said that he returned to normal duties but:

was so distressed that I had to struggle to complete my shift. I felt as though my hopes for training and promotion were being destroyed by Toyota because I had complained of discrimination in the past.

Mr Walgama came to work the following day, Wednesday 4 February 2004:

but felt very distressed because of the meeting the previous day. The meeting also brought back memories of the past discrimination, harassment and victimisation I had suffered at Toyota.

He saw Toyota's doctor, being so distressed 'I find it hard even to speak'. The following day he attended his general practitioner who prescribed him anti-depressant medication. He lodged a WorkCover stress claim and did not return to work until about 2 April that year.
On 4 August 2004 as part of a campaign for a 38 hour week with a nine day fortnight for maintenance employees at Toyota, the AMWU called a strike meeting. Mr Grima as Mr Walgama's Shop Steward, called on him to attend the meeting. Mr Walgama was unwilling. Mr Grima said 'come along and just listen to what's being said', but Mr Walgama refused. The meeting was held and resolved to call a strike. The meeting was addressed by Mr Carvalho as the senior AMWU shop steward at the site. Mr Walgama alleges that Mr Carvalho told the meeting that he, Mr Walgama, was a 'scab' and must be 'forced off the site'.
Mr Walgama's refusal to attend the strike meeting appears to be an implementation of the threat in his letter to the union's National Secretary to decline to attend union meetings or participate in industrial action. Mr Walgama alone amongst the Press Shop Maintenance team worked through the strike. After the meeting Mr Walgama says that Mr Grima approached him and said 'if you don't go on strike you will have to pay the price'. Mr Grima denies this.
This action by Mr Walgama can be seen as a remarkable turn around. As previously noted he said he himself had been a shop steward before migrating to Australia. Following his transfer to Press Shop Maintenance he and a number of other members of the team were dissatisfied with the representation which they were receiving from the then shop steward. They wrote to the national secretary of the union. As a result an election for the office of shop steward was held. It seemed at one time that Mr Walgama himself would be a candidate. In the end following a process of jockeying and head counting, Mr Walgama withdrew and placed his support behind Mr Grima. At that time he and Mr Grima were good friends. It will be recalled that following the meeting in February 2004, Mr Grima had attempted to console Mr Walgama.
Following the meeting and the strike, Mr Walgama says that shop steward and team leader Mr Laurie Grima refused to speak to him or work with him as did Mr Paul Norris, Occupational Health and Safety Representative for the AMWU and Assistant Shop Steward for the shift and a former shop steward himself. Mr Richard Petrie, he said, also began ignoring him.
Mr Grima says that he ended his cordial relations with Mr Walgama following a separate and earlier dispute over a safety matter. Mr Petrie denies avoiding speaking to Mr Walgama at any time but requested that he not be rostered to work with him in the absence of a third person because he says Mr Walgama made a false allegation of a safety breach against him.
On 8 August a recommendation to resolve the strike from Commissioner Foggo of the Australian Industrial Relations Commission was posted on the noticeboard in the Press Shop Maintenance area. The recommendation consisted of a number of pages and on one page the following appeared:

There should not be any intimidation of harassment of any employee/s that have not participated in the industrial action.

Mr Walgama said he found that the word 'employee/s' had been struck out and replaced with the word 'scab'. He said:

I was too scared to take the papers down because I was worried someone in the AMWU would see me and punish me. The document stayed on the noticeboard for a number of days without being removed.

Mr Walgama says he found the same document for the Industrial Relations Commission with the same department in his tool box later in the month. He says he was the only worker to have this document placed in his tool box.

The word 'scab' is an abusive word used by unionists to describe a worker who 'breaks' a strike. A detestation of strike breakers is part of the universal union culture shared by unionised industrial workers across the continents and across the centuries.
Mr Walgama said when he opened his tool box he found another copy of the same document, once again with the word scab written on it. Mr Walgama drew these matters to the attention of Ms Gail McDaniel who was the Equal Opportunity Contact Officer on Mr Walgama's shift. She was sympathetic but took no particular action. She said she did not regard herself as in receipt of a formal complaint as equal opportunity contact officer but rather someone to whom Mr Walgama had spoken to as a friend. Mr Walgama said that he felt demoralised by these events and continued to take his anti-depressant medication.
From time to time Mr Walgama was acting team leader. He was working upon a proposed roster which would more fairly allocate the work of 'pit water checks'. When he opened the document upon which he had been working on the computer screen in the Press Shop General Maintenance Area, he saw that the words 'fuck off black cunt' were typed in thick black capital letters diagonally across the roster. He said that Ms McDaniel and Mr Tran, other team members were present when he opened the document and discovered the obscenity written across his draft roster. Ms McDaniel said that she was not present but agreed that Mr Walgama drew the matter to her attention.
Mr Walgama said that he felt most offended and believed the comment was addressed to him personally 'because [the words] were on a roster I had prepared and because of my past complaints of race and industrial activity discrimination'. He complained to Production Engineer, Mr Dan Adalwohrer and Group Leader, Mr Martin Richie as well as Ms McDaniel. Once again, Ms McDaniel did not regard herself as having been put in possession of a formal complaint to her as Equal Opportunity Contact Officer.
Mr Ritchie and General Foreman, Mr Nikolovski, investigated the matter. They concluded however, that since the computer was open to anyone in the Press Shop it would not be possible to establish who had written the offending words. According to Mr Ritchie, the computer terminal was located at mezzanine level and was open to all team members. Since the terminal was at the top of the stairs, the culprit could not have been casually observed by someone else in the room. A person typing illicit material on the terminal would be warned of the approach via any onlooker by the necessity for the onlooker to approach an open staircase.
On Saturday 30 October 2004 the group was doing maintenance overtime. Mr Walgama entered the tea room for Press Shop Maintenance employees and greeted team member, maintenance fitter, Mr Garry Veal with the words 'good morning brothers, I am here'. Mr Veal replied 'good morning brother, how are you?' There is a dispute as to the tone in which Mr Walgama made these remarks and how many times he said them and in particular how many times he used the word 'brother'. Mr Grima glared at Mr Walgama, got up and began shouting. Mr Walgama says that Mr Grima called him a 'fucking bastard' and a 'cunt'. Mr Grima walked into the Press Shop office and Mr Walgama said he heard Mr Grima punching and kicking something. Since this incident happened on a Saturday, General Foreman, Mr Nikolovski was in charge in the absence of more senior supervisors. He told Mr Walgama to wait in the conference room. Mr Walgama said he had to pass Mr Grima in the main office and Grima shouted 'bastard I will stab him'. While waiting in the conference room, Mr Walgama says he heard Mr Grima continuing to shout obscenities 'for about 10 to 20 minutes'. No other person suggests that Mr Grima was shouting for so long a period. Mr Walgama said he was 'petrified' and began to cry and shake. He suffered a headache and a 'burning and tightening sensation throughout my whole body'.
According to Mr Walgama, Mr Nikolovski interviewed him at about 8.00 am asking him what he had done and saying 'you are provoking people'. Mr Walgama prepared a statement which he signed in Mr Nikolovski's presence. Following the interview, Mr Nikolovski told Mr Walgama to eat his breakfast away from the tea room. From 9:00am to 12:15pm he worked on what is known as the '2C1 machine'. Mr Grima walked past Mr Walgama. Mr Walgama regarded this as an attempt to intimidate him. Mr Nikolovski directed Mr Walgama not to address persons as 'brothers' again. Mr Walgama collapsed and was taken by ambulance to the Western Hospital. He said he was told he had suffered 'an anxiety attack and blacked out'. The following day he went to his general practitioner who increased his dosage of anti-depressants. He made another WorkCover stress claim and was certified unfit for work from 30 October 2004 to 14 November. When he returned to work on 15 November he said he felt 'incredibly upset, vulnerable, scared and headachy; especially when I heard people at work swear or use offensive language'.
On 25 November 2004 Mr Walgama was called to a meeting convened by Ms Nicky McCarthy of Human Resources Department and Mr Atsiaris. Ms McCarthy directed Mr Walgama not to call anyone 'brother' or 'sister' again. She told him that his statement about Mr Grima's alleged statement 'I will stab him' was false.
Further on the morning of 9 December 2004, when Mr Walgama was having breakfast, he heard Mr Paul Norris, who was the Occupational Health and Safety Representative for the shift, say the words 'suck my cock' in a loud voice. Mr Walgama said:

I believe that Norris was referring to a video that he had seen at home the night before. I was extremely offended by Norris sexually explicit language. I suffered a headache and a burning sensation in my body, and my general levels of anxiety increased.

Mr Norris confirmed that he used the words alleged. He agreed that he was referring to words in a video which he had viewed the previous night. The title of the video had led him to believe that it was suitable for viewing by children and he had been shocked to hear the line which he quoted in the video. He was telling those to whom he was speaking that this video was clearly not suitable for children including language such as the phrase which he quoted. Mr Norris concedes that it was inappropriate to utter these words in a semi-public area in a loud voice. He was cautioned by management and accepts that his speech was inappropriate. Mr Walgama said:

To my knowledge, Toyota took no action in relation to my complaint of sexual harassment against Norris. Once again I felt demoralised and unsupported by the company.

No-one suggests, so far as I am aware, that Mr Norris' words were particularly directed at Mr Walgama or that Mr Walgama was a member of the circle to which those words were directed.
At around the same time, Maurice Blackburn Cashman wrote a letter of demand to Mr Walgama on behalf of Mr Grima. The letter stated that Mr Walgama had defamed Mr Grima by falsely alleging that he had threatened to stab him. The letter demanded a public retraction and apology and an undertaking:

not to make disparaging comments, unfounded allegations or threats, or engage in abusive behaviour towards [Mr Grima] in the future.

Failing the provision of these things by 11 January 2005 proceedings in the Supreme Court were threatened. Mr Walgama's solicitors replied denying liability on behalf of Mr Walgama and refusing to give any apologies or retractions. No proceedings seem to have been issued.

On 21 June 2005 Mr Walgama saw a graffito in the toilet next to the '6B line' in the Press Shop stating 'fuck black scab'. He regarded this as a reference to himself because he 'had been the only person in the Press Shop not to strike in August 2004 and also have black skin'. The following day he complained to Mr Atsiaris about this graffito. Mr Atsiaris said that the writing may have been there 'for a while' and was probably not about Mr Walgama. In his evidence, Mr Atsiaris said that it was impracticable to carry out any effective enquiry as to the writer of the graffito. The toilet in question he said was used not only by maintenance staff but by production staff in the Press Shop. Assuming one of the regular uses wrote the graffito, it could be any one of 200 to 300 people he said.
On 2 May 2005 a flashing light showed that there had been a malfunction on the 2C1 line. Part of the processes entailed a vacuum system picking up vehicle doors which had been pressed and then releasing them on to a production line. The robotic function had the vacuum lasting longer than it otherwise should have. The result was that the robot was leaving the doors down on the line but then picking them up again. Mr Walgama was working on the vacuum mechanism with a view to rectifying the malfunction. Mr Petrie who had been in the office, appeared on the scene. He says that he was specifically assigned to the 2C1 line on that day. In his judgment the more efficient way of dealing with the problem was simply to modify the timing on the vacuum system so that the line could immediately resume operation and rectify whatever underlying malfunction there was during the next maintenance shutdown. It is clear then that Mr Petrie was seeking to have Mr Walgama yield control of the maintenance operation to him. In accordance with standard procedures when a maintenance fitter begins working on a machine he attaches a 'danger' label to it. While the danger label is attached, the machine must not be operated by anyone. Mr Petrie wanted the mechanism to be brought back into operation so that he could observe the problem. Mr Walgama said he did this while Mr Walgama's danger tag was on the machine and without warning Mr Walgama. To do such a thing would be most dangerous and it was agreed by all would potentially be a 'sackable offence', that is, Mr Petrie might have lost his job if such an allegation against him were sustained. Mr Petrie agrees that he did re-start the machine but says it was after Mr Walgama was clear and after Mr Walgama's danger tag had been removed. Mr Walgama says, and Mr Petrie agrees, that he told Mr Walgama to pick up the misloaded sheet metal on the floor which Mr Walgama declined to do. Mr Petrie then told him to 'fuck off'.
Mr Walgama said:

I consider that Petrie told me to "fuck off" on 2 May 2005 because of my previous complaints about Grima, and because of my refusal to participate in industrial action in August 2004.

Mr Walgama made a complaint to Mr Nikolovski, the general foreman and also to Human Resources advising Ms Belinda Page. He said he was most distressed and 'suffered a headache, and started crying, shivering and shaking'. He went to the medical centre for about an hour before he was fit to return to work. On 5 May Mr Walgama attended a meeting with Mr Nikolovski and Group Leader, Mr Martin Ritchie. Mr Petrie was told he had agreed to provide a verbal apology for having told Mr Walgama to 'fuck off'. Mr Walgama asked for a written apology. Mr Nikolovski said 'you are playing games'. According to Mr Walgama, Mr Nikolovski told him that he, Mr Nikolovski, had made false allegations in the past and Human Resources had told him to counsel Mr Walgama. Again, Mr Walgama was upset and stressed, he could not sleep, was too unwell to go to work and attended his general practitioner who certified him unfit for work until 11 May. He continued with his anti-depressant medication.
On his return to work Mr Walgama said Mr Petrie continued to ignore him. Management had exonerated Mr Petrie of the allegation of having operated the 2C1 machine whilst Mr Walgama's danger tag was placed there.
In June 2005 Mr Walgama says that the maintenance employees at Altona North 'decided to implement an unofficial ban on working all overtime in the lead up to the workplace agreement negotiations between the AMWU and Toyota'. Mr Walgama did not participate in the ban. On 29 June he was unable to open his locker because the lock had been tampered with. He reported this to Mr Nikolovski. Following a serious injury to his hand on 1 July 2005 he returned for a meeting on 25 July and found that his tool box had been tampered with. Mr Nikolovski says that the tool box Toyota provided was unable to be repaired so Toyota provided Mr Wagama with a padlock to secure the toolbox.
Mr Walgama complains of the psychological effect that he says these events have had upon him. He says:

I have been treated like a second class citizen at work, and have at times felt like an animal, because of my race and industrial activity and because I have complained of discrimination and harassment at Toyota.

He said before these events he had no pre-existing psychological problems. Since these events he has had to take sedatives, sleeping tablets and anti-depressants. He suffered from an adjustment disorder with severe chronic depressed mood and anxiety, post-traumatic work related stress, weight loss, memory loss, concentration difficulties and insomnia. He suffers from flashbacks. His family has suffered as a result he says.
On 10 October 2005, Mr Walgama filed a complaint of race industrial activity discrimination and sexual harassment in employment and victimisation with the Equal Opportunity Commission. The Commission determined under Section 108(1) of the Equal Opportunity Act 1995 to decline to entertain the complaints of industrial activity, discrimination, sexual harassment and victimisation. The Commission referred the complaint of race discrimination for conciliation. The conciliation was unsuccessful and the complaints were referred to this Tribunal by the Commission in a letter dated 13 April 2006. An unsuccessful mediation followed at the Tribunal. The matter was assigned successively to no less than four hearing dates all of which were vacated. The matter came on for hearing before me on 26 March 2007 and failed to complete in the allocated four days. A further four days of hearing took place in June with a further three days in July, making a total hearing occupying no less than 11 days.
This matter is a particularly difficult one to adjudicate for several reasons. First, the hearings have been discontinuous, each of the allocations of time which had proved inadequate had been made following consultation with the parties. Neither the one party, the other, nor both have provided a transcript of the proceeding making the elaborate cross-examination of witnesses which was undertaken difficult to cope with or remember having regard to the interruptions and lapses of time.
There is the further problem that the present group of complaints are but a chapter in a much wider complex of grievances that Mr Walgama has against his employer and his workmates. The 'elephant in the room' is what seems to be the basal concern of Mr Walgama that his trade advancement has been blocked by the actions of Mr Carvalho while the latter was his shop steward and senior AMWU site representative. This matter has been the subject of settlement on confidential terms, there must be a question as to whether it can be re-litigated and secondly, it has not been possible to refer to the terms upon which those issues were disposed of. Many of the actions and attitudes displayed by Mr Walgama in the events narrated have as their starting point his conviction that his advancement at Toyota has been sabotaged by the AMWU. These issues are of course touched upon in but not fully gone into.
I turn then to the specific matters alleged by Mr Walgama.

In her closing submissions Ms Serpell said that her client's case as to its specifics was as formulated in his particulars of complaint filed into the Tribunal. I follow the order in which the various matters are set out in those particulars.

Alleged Discrimination on Grounds of Race Toyota and Grima

The first of the instances of alleged race discrimination by Toyota is described at paragraph [25] above. It entailed the defacement of a draft roster prepared by Mr Walgama with offensive sexual and racist language. According to the particulars:

The complainant considered that the racist words were directed towards him, because staff knew that he was preparing the roster and also because he had been called and had complained about being called a 'black cunt' at work before.

Most of the evidence and argument in the course of the hearing turned on the question as to whether it is reasonably possible for management to identify a perpetrator of the defacement to the roster sheet and whether bona fide efforts were undertaken on the one hand or if management merely 'went through the motions' on the other. Ms McDaniel, one of the other members of Mr Walgama's shift, who it will be recalled, was the Equal Opportunity Contact Officer for the shift said that when the defacement was shown to her, it occurred to her to wonder if Mr Walgama had done it himself either to obtain sympathy or to make trouble. Whilst Mr Forbes, Counsel for Toyota, was I think mildly attracted to this speculation, he did not seriously urge me to make such a finding. There are no grounds upon which I believe that finding could be made. Once it is excluded the conclusion is irresistible that a Toyota employee being a member of the morning shift for Press Shop Maintenance other than Mr Walgama wrote the racist words. The purpose of the roster was, according to Mr Walgama, to effect a fairer distribution of unpopular duties amongst the shift. Mr Ritchie who was Group Leader for Press Shop Maintenance at the time, told me that a shop steward at North Altona would customarily spend 80% of his time on union business. Where as in this case, the steward was representing only approximately 29 other workers this seems surprising. Mr Nikolovski, the General Foreman, gave evidence to similar effect. Mr Ritchie also said that a large percentage of the occupational health and safety representatives' time would be spent on union business. Clearly those who had something to lose from Mr Walgama's draft roster if it were implemented were Messrs Grima and Norris; neither however has admitted being the author of the defacement and beyond the finding that I have already made, the authorship of these words must remain a matter of speculation.
These complaints are brought under the Equal Opportunity Act 1995 which by Section 14 prohibits an employer from discriminating against an employee. The discrimination alleged here is direct discrimination which is defined by Section 8 of the statute as follows:

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

Amongst the attributes by reference to which discrimination is prohibited is race (Section 6(i)). Mr Walgama it will be recalled is of Sri Lankan ethnicity and has a dark complexion, hence he concludes the reference to 'black' is a reference to him. Section 14 of the Act sets out the various matters which can constitute discrimination which by paragraph (d) include action which entails 'subjecting the employee to any other detriment'. The definition section, Section 4, provides that 'detriment' includes 'humiliation and denigration'. The defacement certainly constitutes a 'denigration' of Mr Walgama. According to the Oxford English Dictionary, 'humiliation' is:

The action of humiliating or condition of being humiliated; humbling, abasement formerly often equal humbled or humbled condition, humility.

The word 'humiliate' is given the primary meaning by the dictionary as:

To make low or humble imposition, condition, or feeling; to humble. Refl to humble or abase oneself, to stoop, sometimes to prostrate oneself, to bow.

The defacement was on Mr Walgama's own document. There is no evidence that apart from the author of the defacement, the words were shown to anyone other than Mr Walgama himself and those to whom he complained, hence it is difficult to see that in the circumstances he has been humiliated.
Subject to the issues of vicarious liability, this part of Mr Walgama's complaint appears to have been made out.
The second incident of alleged racist discrimination is the incident on the morning of Saturday 30 October 2004 described above at paragraph [28]. There is a dispute in evidence as to exactly what Mr Grima said. In particular he denies having made a threat to stab and an enquiry carried out by Ms Nikki Chapman of the HR Department of Toyota found not only that the allegation made by Mr Walgama of a threat to stab him was unsubstantiated but that it was 'vexatious'. Ms Chapman confirmed that by this she meant it was a lie. For present purposes it is sufficient to note that none of the words alleged to have been uttered by Mr Grima have any racist element to them. The particulars of complaint state:

The complainant associated Grima's language with the previous racist comments such as 'black cunt' and 'black bastard' he had been called at work, of which Grima was aware.

Assuming that Mr Grima said what was alleged I am unable to see how this association in Mr Walgama's mind can convert words of simple vulgar or sexual abuse to racist language. If we accept for the sake of the argument that Mr Grima was aware that racist epithets had been added to these words previously, the more obvious inference would be that in formulating his vituperation Mr Grima was specifically abstaining from using any racist language. This complaint of racial discrimination is therefore not sustained.
The next incident of alleged racial discrimination is described at paragraph [35] above. Mr Walgama's particulars of complaint state:

The complainant took the graffiti personally because of his dark skin colour.

Again, in the circumstances this would appear to constitute racial discrimination for the same reasons as the defaced roster in that it denigrated Mr Walgama on the basis of his race. There are of course questions as to whether it could be regarded as addressed to him. The evidence showed that he was the only member of the Press Shop Maintenance Group who at the relevant time could have been described properly as a 'scab'. On the other hand the evidence was that the toilet in question was one which was used primarily by production rather than maintenance staff. There might be a question as to whether in the circumstances Mr Walgama was the person referred to. Yet there was no evidence that there was any 'strike breaker' amongst the production group in the Press Shop. Ultimately, Mr Atsiaris who is the Assistant Maintenance Manager at Altona, accepted that the reference in the graffito was probably to Mr Walgama.
Subject to the issues of vicarious liability, once again, I find this part of Mr Walgama's complaint established.

Discrimination on the Grounds of Industrial Activity

Mr Walgama's particulars of complaint allege the strike meeting and the strike described at paragraph [16] and the alleged threat made by shop steward, Mr Grima referred to at paragraph [17]. They then refer to the defacement of a Notice of Recommendation by Commissioner Fogga of the Australian Industrial Relations Commission (see paragraphs [21] - [22]) and to finding the same document with the same defacement in his tool box.
Next, the particulars refer to the incident referred to at [36] - [39] involving Mr Petrie and then Mr Walgama's discovery of the graffito in the toilet referred at paragraph [35]. Finally he refers to the damage to his tool box referred to at paragraph [40]. Mr Walgama's case is that these detrimental occurrences occurred because of his industrial activity in August 2004 and June 2005.
Section 7 of the Equal Opportunity Act 1995 stipulates that prohibited discrimination is only prohibited if it is 'on the basis of an attribute'. This requires a causal link between the discrimination and the relevant attribute. Section 8(2)(b) of the Act provides that that causal link exists 'whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason'. The 'attribute' said to be the basis of the treatment complained of is 'industrial activity'. The parties are agreed that the present definition of 'industrial activity' which was inserted into the statute by Act No. 79 of 2006 is irrelevant and the definition as it existed when these events occurred is the governing one. The relevant parts of the definition of industrial activity are as follows:

(a) being or not being a member of or joining, not joining or refusing to join, an industrial organisation;

(b) participating in, not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation (emphasis added).

Mr Forbes on behalf of Toyota submits that having regard to the definition of industrial activity there was at the relevant time no prohibition under the Act against an employer discriminating against an employee on the basis of unlawful industrial activity. Mr Forbes then took me to Section 170MN of the Workplace Relations Act 1996. That section provides that while a certified agreement is in force employees or industrial organisations must not engage in industrial action. He referred to the provisions at Section 170ND, NE and NF which allow for the recovery by an employer of civil penalties for breach of this provision. He said that as at the time of the 2004 strike a certified agreement made in 2002 was in force. So much he said appeared from the recommendation made by Commissioner Fogga therefore the strike in 2004 was not lawful industrial activity, therefore whilst not admitting that discriminatory conduct had taken place, he submitted that no relief could be granted under the Equal Opportunity Act if it were proven that Mr Walgama had been discriminated against by reason of his failure to go on strike in August 2004.
The result seems to be then that the August 2004 strike was not lawful industrial activity. So much was conceded by Ms Serpell on behalf of Mr Walgama. It follows that any discriminatory conduct against Mr Walgama which had as a substantial reason is failure to participate in the August 2004 strike cannot, for that reason, be regarded as prohibited discrimination under the Equal Opportunity Act 1995 as it applied at the time of these events.
I heard no separate submissions with regard to the events that occurred in 2005 about the time of the unofficial overtime ban. I did have placed in evidence a certified agreement covering the Toyota employees at Altona North entered into in 2004. The same reasoning would appear to apply to any discriminatory conduct alleged by Mr Walgama to have occurred by reason of his failure to participate in that industrial action.
It may seem paradoxical that this should be so. In an abstract sense it would seem more morally objectionable to inflict detriments upon a person who has done what the law requires, that is abstain from unlawful industrial activity. Yet this does not seem to be prohibited by the Statute. Nevertheless that appears to be the effect of the words in the Act.
To avoid this consequence Ms Serpell submitted that a substantial reason for the discriminatory conduct following the events of August 2004 was Mr Walgama's refusal to attend the strike meeting which preceded the strike itself. It should be noted that the evidence showed that the shop stewards carried out a 'walk through' and Mr Walgama's absence from the strike meeting was noted and denounced by Senior Shop Steward Mr Carvalho who, according to the evidence of Mr Veal, described Mr Walgama as a scab. She also noted that Mr Norris, Occupational Health and Safety Officer on the Press Shop Maintenance morning shift also ex officio Deputy Shop Steward, gave evidence that Mr Walgama's strike meeting branded him as a scab. That a distinction was going to be drawn between Mr Walgama's failure to attend the meeting and his failure to go on strike was not obvious to me until final submissions were being made. It did not seem to me that the evidence-in-chief in cross-examination really focused on this issue at all and such evidence as emerged came out only casually. The threat of discrimination based on industrial activity quoted in Mr Walgama's particulars of complaint is the one attributed to Mr Grima to the effect that Mr Walgama would have to 'pay the price' if he did not go on strike, not, I hasten to add, if he refrained from attending the strike meeting. Had I known that the distinction was going to be relied upon, I would have asked Mr Norris and other witnesses the question:

What if Mr Walgama, failing to attend the meeting, repented and heeded the union's strike call? Would he then have been regarded as a scab?

Since no-one was directly asked that question, I must deal with it as best I can on the evidence which I have. Mr Walgama himself regarded the failure to go on strike as what really counted. When Ms Serpell cross-examined a number of Toyota's witnesses as to the identity between Mr Walgama and the person denounced as 'scab' on defaced AIRC recommendations, graffiti and so forth, she put to these witnesses that Mr Walgama was the only one not to go on strike. So also in reference to the epithet 'black' referred to his complexion. The threat allegedly made by Mr Grima of retribution related to failure to go on strike, not failure to attend the meeting. Adopting the counter factual analysis posited a moment ago, I believe that had Mr Walgama gone on strike as the meeting had resolved should occur, he would not have been subjected to overt denunciation as a 'scab' and would not have been subjected to any discriminatory conduct based upon his failure to attend the meeting.
In those circumstances the allegations of discrimination based on industrial activity must be dismissed.

Mr Walgama's complaints of sexual harassment referred to Mr Grima's outburst on Saturday 30 October described at paragraph [28] and the words spoken by Mr Norris on the morning of 9 December 2004 referred to, at paragraphs [31] - [32]. The particulars of complaint say that by reason of these actions he was 'aggrieved, offended, humiliated and intimidated'. Section 86 of the Equal Opportunity Act 1995 prohibits an employer from sexually harassing an employee. Section 85 of the Act defines what constitutes sexual harassment in the following terms:
1. What is sexual harassment?
  - (1) For the purpose of this Act, a person sexually harasses another person if he or she -
    - (a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or
    - (b) engages in any other unwelcome conduct of a sexual nature in relation to the other person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

(2) In subsection (1) conduct of a sexual nature includes -

(a) subjecting a person to any act of physical intimacy; or

(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

(c) making any gesture, action or comment of a sexual nature in a person's presence.

It is clear in the case of Mr Norris that, in making the remarks which he did in December 2004, he engaged in conduct of a sexual nature as that expression is defined in Section 85(2) of the Act. His words were clearly 'a remark or statement with sexual connotations to a person or about a person in his or her presence'. Mr Forbes, on behalf of Toyota, submitted for this to be the subject of a successful complaint by Mr Walgama, he must in terms of Section 85(1) show that Mr Norris' remarks were 'in relation to' Mr Walgama. According to Mr Forbes, if he, Mr Forbes, were walking along the street and someone made an audible sexual statement to another person within earshot which embarrassed and humiliated Mr Forbes, it could not be said in that instance that the remark was made 'in relation' to him. Ms Serpell submitted that this was incorrect. Mr Norris' remark was made in Mr Walgama's presence. If not made to him in the sense that it was not directed to him, or not intended to refer to him, it was in my view nevertheless in relation to Mr Walgama because Mr Walgama was a member of a relatively small group in the tea room when the remark was made. He was part of a group of work mates, not just a casual collection of passers by on the street. I believe a reasonable person in Mr Norris' situation would realise that others in the room including one woman and her son would be offended by this remark.

Subject to what I say below as to matters of vicarious liability, the complaint of sexual harassment relative to Mr Norris' remarks is made out.
The situation with regard to Mr Grima this is somewhat more complicated. It will be recalled that Mr Walgama alleges a threat to stab, which included the word 'bastard'. Bastard is, in the literal sense of the word, an ex nuptial son or daughter. In common speech, a bastard is an unpleasant person. The literal reference is to the individual's pedigree. Since all humans are the result of sexual activity by their parents, on one view any reference to an individual's pedigree is a sexual reference or one with a sexual connotation. In my view, however, the reference here is too remote to constitute sexual harassment. I note, in any event, that Mr Grima denies having used the word 'bastard' as part of a threat to stab. Without making any finding as to the correctness of the denial, I put this to one side.
According to Mr Walgama, however, Mr Grima made a number of other remarks referring to female genitalia. Mr Grima's viva voce evidence on the events of 30 October was, I think, unreliable. He opened his viva voce evidence on the subject by conceding 'I lost it'. Thereafter he attempted to minimise or trivialise what I accept was an extraordinary and frightening outburst on his part. Even after he had moved from the tea room to the office where Mr Nikolovski was supervising the day's operation, he was still so much out of control that after he commenced his conversation with Mr Nikolovski he broke his tea cup. A number of witnesses said that they could not understand what Mr Grima was saying. One witness said that Mr Grima spoke very quickly, an observation with which I agree having heard him give evidence. Mr Nikolovski said that he had confrontations with Mr Grima probably once a fortnight. When Mr Grima described the events of 30 October in the witness box, he still bristled with indignation in describing what Mr Walgama had done which he saw as 'mocking the union'. In all these circumstances I find it quite probable that Mr Grima uttered sexual obscenities as alleged by Mr Walgama. A reasonable person in Mr Grima's situation would realise that his outburst and words would offend and intimidate Mr Walgama. Subject to the issues of vicarious liability, to which I turn later, the allegation of harassment with respect to the words spoken by Mr Grima on 30 October is made out.

Section 96 of the Act prohibits victimisation. Section 97 of the statute describes what constitutes victimisation. It provides:
1. What is victimisation?

(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 -

(b) has brought any other proceedings under this Act against any person;

(d) has attended a compulsory conference at the Tribunal;

(e) has otherwise done anything in accordance with this Act in relation to any person;

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

(g) has refused to do anything that would contravene a provision of Part 3, 5 or 6 -

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

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

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

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

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

In his particulars of complaint Mr Walgama alleges that he made a number of complaints. He said that in or about 2004 he complained to Mr Grima and 'advised him that he was offended by the words 'black cunt' and 'black bastard''. He said that he complained to Mr Nikolovski in August 2004 about the threats he alleges Mr Grima made to him if he did not participate in the strike. He complained on 8 August to the Equal Opportunity Contact Officer for his shift, Ms Gail McDaniel, about the word 'scab' on the AIRC recommendation and about the same defaced document then placed in his tool box. He complained to Ms McDaniel and Messrs Nikolovski and Group Leader Martin Ritchie and Don Adalwohrer about the defacement of the draft roster on the computer. He said he complained to Mr Nikolovski about what Mr Grima had done on 30 October 2004 and complained to Ms Nicky McCarthy of Toyota's Human Resources Department following Mr Norris' remarks in the tea room on 9 December. He said he complained about the incident which Mr Petrie described at paragraph [36]. He made a further complaint about this matter to Ms Belinda Page of Toyota's Human Resources Department. He complained to Mr Atsiaris in June 2005 about the graffito in the toilet and he complained to Mr Nikolovski about his locker having been tampered with in June 2005. The particulars further state 'in addition to the above instances, [Mr Walgama] also made further complaints on numerous occasions to [Toyota] within the meaning of Section 97 [of the Equal Opportunity Act 1995], but cannot recall the precise dates of these complaints'. The detrimental treatment that he says may be attributed to these complaints is as follows:

A failure or refusal to transfer Mr Walgama back to the Paint Shop.

A failure to provide him with projects to enable him to attain his TR6 skill classification.

Mr Grima's action in ignoring him after [Mr Walgama] complained about the incident of 5 August 2004.

Mr Nikovski's allegation made to Mr Walgama on 30 October 2004 that he had been 'provoking people'.

Mr Nikolovski's direction given to Mr Walgama following the incident on 30 October 2004 that he work on the TC1 machine, not approach the tea room, the group room or Mr Grima. As a result of this Mr Walgama said he 'felt isolated and penalised' for having complained.

The statement made on 25 November 2004 by Ms McCarthy and Mr Atsiaris that he, Mr Walgama, had made a false statement about the incident on 30 October 2004, the letter of demand written by Maurice Blackburn Cashman accusing Mr Walgama of having belittled and abused Mr Grima on 30 October and the incident on 2 May 2005, described at paragraph [36] and Mr Petrie's subsequent conduct in ignoring Mr Walgama.

The next matter of alleged victimisation is the meeting between Mr Walgama, Ms Page and Mr Nikolovski on 5 May where Mr Nikolovski accused Mr Walgama of playing games and lying. Finally it was said on 25 July 2005 after Mr Walgama complained about his locker being tampered with discovered that his tool box had also been tampered with.
As to the failure to transfer Mr Walgama back to the Paint Shop, the evidence from Toyota was that a transfer to the Press Shop was necessary to enable Mr Walgama to work on permanent day shift and that no permanent day shift positions were available at that time. I have heard no evidence which would indicate that this was other than an accurate description of the reasons why Mr Walgama was not transferred back to the Paint Shop.
As to the delay in Mr Walgama's attainment as a TR6 qualification, the evidence was unsatisfactory. I was told during the course of the hearing that Mr Walgama was in the course of completing a project which would, if successfully completed, enable him to attain a TR6 designation. Once this occurred his appointment would be backdated to the day in 2000 when he lodged his initial application signed off by his then supervisor. I am aware that this arrangement was reached as a result of the confidential settlement reached in the previous proceeding in the Tribunal. There must therefore be doubt as to whether a complaint on this score can be renewed. In any event the reason for the delay in Mr Walgama's advancement put by his counsel to a number of Toyota's witnesses in cross-examination was that his advancement had been vetoed by Mr Carvalho. Mr Walgama said in his reply statement that Mr Carvalho had said that there were 'too many black cunts' in the Paint Shop. There is simply no evidence that whatever was obstructing Mr Walgama's advancement had anything to do with any complaints which he made. Mr Walgama's case as I understood it was that he was being held back by Mr Carvalho and the AMWU. It was notable that Toyota offered no explanation at all as to why Mr Walgama, who had lodged his application for advancement to TR6 in 2000, had yet to be assigned a project to complete for that purpose at the beginning of 2007 when, according to Toyota's own witnesses, the longest delay for any other person who could be remembered was not more than two years. Despite the absence of any substantive response on this point from the company at all the allegation that these matters derived from victimisation must be rejected by reason of a lack of evidence of any connection with Mr Walgama's making a complaint.
I accept that Mr Grima ignored Mr Walgama. He admitted as much himself and other witnesses such as Ms McDaniel noted that this was the case. Mr Grima's explanation was that he stopped speaking to Mr Walgama following a dispute over a safety issue. In his written statement he said that his relationship with Mr Walgama was not the same after that occurrence. He did not, in his written statement, go so far as to say that he began ignoring Mr Walgama after this incident though it is clear that he did in fact ignore him. Mr Walgama's case was that it was his refusal to join the strike in August 2005 that led to Mr Grima's ignoring him. Mr Walgama alleged, as it will be recalled, that Mr Grima told him that if he did not strike he would 'pay the price'. In my view it is implausible to consider that Mr Grima ignored Mr Walgama because they exchanged words over a safety issue. On the other hand Mr Grima was the shop steward and describing the events of 30 October 2004 he bristled with indignation years after the event as he described conduct by Mr Walgama which he said amounted to 'mocking the union'. He said these words with the same indignation that an ultra patriot might describe defacing the flag or a pious religious believer might describe someone deriding the deity. It is as plausible to think that a shop steward in this situation would 'send to Coventry' one of his members who broke a strike as it is implausible to think that he would take that action over words exchanged on a safety issue. This finding, however, attributes Mr Grima's action to Mr Walgama's breaking the August 2004 strike. There was no evidence which would suggest that any complaint made by Mr Walgama was a substantial reason for Mr Grima's actions in this regard.
In my view Mr Nikolovski was justified in accusing Mr Grima of 'provoking people' when he interviewed him on 30 October. Mr Walgama's account is that he entered the tea room on the morning of 30 October and said to Garry Veal 'good morning brother, I am here'. It is clear that Mr Walgama was in fact 'sledging' Mr Grima, the dedicated unionist by, in Mr Grima's words, 'mocking the union'. The evidence was that 'brother' is a word of fraternal comradeship between unionists. It is obvious that a dedicated unionist like Mr Grima would find the use of the word by Mr Walgama, even although a union member, a union member who had broken a strike, most offensive. Although Mr Walgama said he used the word only once, other witnesses suggested he used it more often. Ms McDaniel for instance, who was generally friendly with Mr Walgama, said she wondered why he went out of his way to make himself unpopular by calling people 'brother'. Mr Veal, who was sympathetic to Mr Walgama and gave evidence in support of his case said that on the relevant occasion Mr Walgama used the words twice greeting him as 'brother' and then greeting Mr Grima as 'brother'. Toyota suggests that rather than stating the obvious 'I am here', something which anyone who looked up and saw Mr Walgama's body could ascertain for himself, Mr Walgama was saying in effect 'I am still here' viz the union cannot get rid of me. The fact that Mr Walgama was using the word 'brother' to 'sledge' Mr Grima and others is underlined by the admitted fact that even after the extraordinary events of 30 October Mr Walgama wrote the word 'brother' on his hard hat. He said that this was done as a fraternal greeting to a visiting Japanese delegation. Given that Mr Walgama had already been warned not to use the word 'brother' because it was provocative. I accept that there was ground for using it as a fraternal greeting to the visiting delegation. I think however it was a mere pretext to return to his previous provocative ways. Mr Nikolovski noticed that when he spoke to Mr Walgama later on 30 October, Mr Walgama again addressed him as 'brother', something which he had not done in the past. Mr Nikolovski it will be recalled was the general foreman and the most senior supervisor present on the day. It is difficult to think that Mr Walgama used those words for any purpose other than being provocative.
For all these reasons I believe Mr Nikolovski was quite justified in giving the direction to Mr Walgama that he did that he work on the 2C1 machine and keep away from Mr Grima, the group room and the tea room. I do not believe such justified management action can amount to victimisation.
Again Mr Grima's avoidance of Mr Walgama was not as a result of any complaint that Mr Walgama made but because he said Mr Walgama was a 'scab' and a 'strike breaker'.
The most difficult issue arises with regard to the meetings on 30 October and 25 November. On 25 November it will be recalled Ms McCarthy and Mr Nikolovski informed Mr Walgama that his allegation that Mr Grima had said 'bastard I will stab him' was rejected as vexatious, that is a lie. According to Mr Nikolovski no such allegation was made by Mr Walgama on 30 October and it arose for the first time when Ms McCarthy read a statement which Mr Walgama had made in support of a WorkCover claim arising out of the events of 30 October. Immediately following 30 October Mr Walgama had been away on sick leave. The statement which Mr Walgama made on 30 October makes no reference to the alleged stabbing threat. Mr Nikolovski said that this is because the matter was not raised with him at all. The statement was taken solely in response to the complaint that Mr Grima had made about being mocked by the use of the word 'brother'. Mr Walgama said that his statement omitted references to the stab threat because they were 'brushed off' by Mr Nikolovski as irrelevant.
Ms Serpell contended that Mr Atsiaris, who was Mr Nikolovski's superior, said in cross-examination that he heard about the 'stab threat' from Mr Nikolovski on the Monday morning following Saturday 30 October. Since Mr Walgama had been away on sick leave, the only way that Mr Nikolovski would have been aware of this matter to impart it to Mr Atsiaris the following Monday is if Mr Nikolovski had been told about it on Saturday 30 October. There was no transcript and my notes of the hearing do not clearly indicate that Mr Atsiaris said this. I could, of course, take the trouble of arranging an audition for myself of the digital recording of the proceeding which was made. In the end I considered that to be unnecessary. Mr Atsiaris, on his own account, was about to take up an overseas appointment in Canada. He was not present on Saturday 30 October. His recollections were sketchy and he seemed in a generally detached mood when he gave the evidence. It did not appear if he did say that he heard about a particular matter on a particular date that he gave that answer with the advantage of any contemporary documentary record. In the circumstances even if Mr Atsiaris did give an answer in the terms suggested by Ms Serpell I would not regard it as a proper basis to make a finding that Mr Walgama did raise the complaint of the alleged stabbing threat on 30 October.
No other person has corroborated what Mr Walgama alleges was said by Mr Grima. Mr Grima denies it. I accept the evidence of Mr Nikolovski that the stab threat allegation was not raised on 30 October. Therefore I believe Ms Chapman was entitled to take the view as she did that the stab threat allegation lacked credibility since it was not made on the day. It follows therefore that she and Mr Nikolovski were entitled to take the line that they did. They took that action not because Mr Walgama made the allegation but that because in their reasonable opinion the allegation was false.
It follows from the findings that I have already made that Mr Grima was belittled and abused on 30 October and was the victim of a false allegation of a threat to stab. I do not believe that the prohibition on victimisation prohibits one employee from seeking remedies for defamation against another.
As to the incident involving Mr Petrie, even putting to one side the allegation that Mr Petrie operated the 2C1 machine while Mr Walgama's 'danger' tag was attached to it, Mr Petrie's actions seemed to have been provocative. Mr Petrie said, and this was not denied, that he was 'in charge' of the 2C1 line. There was no evidence that this gave him a power of direction over Mr Walgama. Ms Serpell submitted that Mr Petrie had a lower trade grading than did Mr Walgama. Mr Petrie, in effect, told Mr Walgama that he did not know what he, Mr Walgama, was doing and that he, Mr Petrie, would take over. Mr Walgama should render some assistance as a labourer by picking up the misloaded doors. It is unsurprising that Mr Walgama was extremely annoyed by this conduct; but there is no evidence that I heard that would suggest that whatever Mr Petrie did, he did it for any substantial reason including any complaint that Mr Walgama had made. Mr Petrie admitted that he avoided working with Mr Walgama because of what he said was a false complaint of a safety breach against him. Even if Mr Petrie did what was alleged, namely operate the machine with the danger tag showing, there was no evidence that he was motivated by any motivation which was rendered unlawful by the Equal Opportunity Act 1995. Hence I do not believe that his avoidance of Mr Walgama following Mr Walgama's complaint could amount to victimisation.
Mr Petrie was prepared to make an oral apology for having told Mr Walgama to 'fuck off'. Mr Walgama insisted that the apology be in writing. Mr Nikolovski did not regard this as reasonable and did not even suggest to Mr Petrie that he should give such an apology. In the circumstance that it is in the interests of management to try and compose differences between workers, I do not think that it was reasonable for Mr Walgama to insist upon an apology in writing. Hence there was nothing unreasonable in Mr Nikolovski's characterisation of Mr Walgama's refusal to accept an oral apology as playing games.
The definition of "victimisation" in Section 97 of the statute quoted above in all of the paragraphs forming part of the definition in Section 97(1) makes specific reference to the Equal Opportunity Act or its procedures. The exception to this is paragraph (a). Read literally it is sufficient that the putative subject of victimisation has made a complaint against any person so read literally it is victimisation contrary to the Equal Opportunity Act 1995 to subject a person to a detriment for complaining about another whether the complaint relates to any equal opportunity or anti-discrimination issue at all. This is relevant in the present situation in that on the face of it the complaint made against Mr Petrie raised a safety issue, not an anti-discrimination issue. The complaint made by Mr Walgama to management cannot be a 'complaint' for the purposes of Section 97(1)(a) of the Act. 'Complaint' is defined in Sections 3 and 105 as meaning a complaint to the then Equal Opportunity Commission. The only possibly relevant paragraph of Section 97(1) is paragraph (f); but the allegation of a safety breach could not constitute an allegation of a breach of Part 3(discrimination), 5 (sexual harassment) or 6 (victimisation) of the Act. The evidence shows no more than a safety complaint. The complaint about the words used by Mr Petrie could, I suppose, be an allegation of sexual harassment. To be an allegation for the purposes of Section 97(1)(f) a statement need not mention particular words or the Act. It is sufficient that the material acts are alleged (Section 97(2)). With respect to the allegation of a safety breach there is no evidence that at that time Mr Walgama alleged the safety breach was a piece of discrimination as he now does.
In my view, in light of the conflicting accounts of Mr Walgama and Mr Petrie, Toyota was well justified in treating the very serious allegation made by Mr Walgama as unsubstantiated. In the event, however, the company went further accusing Mr Walgama of lying. It appears that the conclusion of this was not merely a matter of one person's word against another's but the case of lying by the complainant derived at least in part from the evidence of Mr Wayne McDaniel, an apprentice fitter, and the son of Ms McDaniel, the Equal Opportunity Contact Officer, to the effect that Mr Petrie restarted the 2C1 machine only after Mr Walgama had removed his safety tag. This matter was the subject of a specific complaint and like a number of contentious issues that have been debated in this lengthy hearing, it would have been expected that Mr McDaniel would have been called as a witness by the company to verify what he is alleged to have told Mr Nikolovski and Ms Page as the Human Resources Group which seems to have been the basis for the company's finding that Mr Walgama was lying in making this allegation and formally counselling him. Mr McDaniel was not called as a witness. No explanation was given for the failure to produce him as a witness. Mr Forbes merely mentioned the making of a 'forensic judgment'. In those circumstances the usual inference is well and truly open, namely that had Mr McDaniel been called as a witness whose evidence would not have supported the company's case that Mr Walgama had been lying.
Accordingly, the company subjected Mr Walgama to 'formal counselling'. The evidence did not disclose the precise consequence of this procedure but a letter of demand or warning was produced in the course of the hearing referring to this and other incidents in which Mr Walgama had been found by Toyota to be 'lying'. Presumably this finding is a mark against him and one that would be relied upon if, for instance, procedures were put in train to dismiss him from his employment. It was a detriment and in light of the failure to produce Mr McDaniel to give the key evidence I believe the detriment was inappropriately imposed. Nevertheless I do not believe that Mr Walgama's allegation of sexual harassment was a reason, substantial or otherwise, for the finding made by Toyota against Mr Walgama that he had lied. Toyota accepted that Mr Petrie had told Mr Walgama to 'fuck off', Mr Petrie admitted as much. This allegation of victimisation fails.
There is no evidence that would link any tampering with Mr Walgama's tool box with his having complained about his locker being tampered with. Both would more plausibly be linked to his failure to participate in the unofficial overtime ban.

Encouraging the Discrimination, Victimisation and Sexual Harassment

Section 98 of the statute prohibits the person from requesting instructing inducing encouraging authorising or assisting another person to contravene the provisions of Part 3, 5 or 6 of the statute. Part 3 deals with discrimination, Part 5 deals with sexual harassment and Part 6 deals with victimisation. The persons alleged to have authorised encouraged or assisted the alleged wrongful act are Messrs Nikolovski, Adelwohrer, Atsiaris and Ms McCarthy. The first three are supervisors with line responsibility for Mr Walgama and Ms McCarthy is a member of the Human Resources Group. In all cases the complaint seems to be of inaction rather than that any of these individuals took affirmative steps. Section 98 of the Victorian Act, which I paraphrased above, stands in contrast to a number of other State and Federal pieces of anti-discrimination legislation which prohibit not only the encouragement of unlawful discriminatory activity but also prohibit persons from 'permitting' that conduct. The absence of such a reference in the Victorian statute means that mere inaction, such as alleged here, cannot constitute a breach of Section 98. This part of the complaint fails.

The sole respondent to this complaint is a corporation. As the saying goes, a corporation does not have a body to kick or a soul to damn. It can only act through its servants and agents. With regard to the matters which I have found proven, these were the result of actions of Toyota employees who were not part of management. With respect to these matters consideration must be given to the exception to vicarious liability established by Section 102 of the statute in the following terms:
1. Vicarious liability of employers and principals

If a person in the course of employment or while acting as agent -

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.

Mr Forbes submitted that were any matters of this type to be found proven against Toyota employees, Toyota should be exonerated from liability by virtue of Section 103. He relied upon the evidence of Mr Dymock, Toyota's Employee Relations Manager and Ms Zandy Fell as to its workplace relationships policy which was 'rolled out' in 2004. This policy was the subject of meetings with all employees it was said and was posted in booklet form to all employees.
Mr Walgama denied having received any training in these relationship or equal opportunity matters.
Ms Serpell tendered that whatever was done with paper policies amounted to mere lip service. She said that Mr Walgama's complaints were largely, if not totally, ignored. She noted that Ms McDaniel, the Equal Opportunity Contact Officer, who according to Toyota's policy, should be the first port of call for equal opportunity complaints had taken no action on any of the matters which Mr Walgama had brought to her. In fact, Ms McDaniel conceded in cross-examination that perhaps she should have acted upon these matters rather than merely regarding Mr Walgama, as she said she did, as having communicated his concerns to her as a friend, thereby not making any formal complaint. According to Ms Serpell, no serious enquiries were made with respect to the defaced AIRC recommendation, the defaced staff roster or the graffito in the toilet. Ms Fell, she said, had handled Toyota's involvement in the intra-union dispute between Mr Walgama and Mr Carvalho poorly by appearing simply to align management with the union leadership to the disadvantage of Mr Walgama. She criticised the failure to have Mr Walgama's differences with Mr Grima mediated or, alternatively, effect a transfer which would separate Mr Walgama from Mr Grima.
Despite the fact that the onus of proof in establishing the Section 103 defence rests on Toyota I believe that that onus has been discharged. The criterion of what is 'reasonable' is not very high or very exacting. Certainly see Pantelopoulos v Transport Accident Commission, unreported, Administrative Appeals Tribunal of Victoria, 7 September 1995, Mr A Pagone (as he then was). Management cannot be expected to supervise every word that comes out of the mouth of a worker. The incident in December 2004, whilst clearly amounting to sexual harassment, was an isolated incident and one which was the subject of reproval. The defacements and the graffito produced special problems of detection since the items in question were in areas generally open to Toyota employees Even elaborate forms of enquiry, such as fingerprinting, would not clearly and conclusively establish the perpetrator or perpetrators. In addition, given that we are considering here what is reasonable, it is far from clear that the more elaborate steps advocated by Ms Serpell would have been 'reasonable' for reasons quite apart from the time and resources which would have been consumed in, for instance, interviews of all members of the Press Shop Maintenance morning shift, apart from Mr Walgama. The defacements and graffito were in themselves trivial matters. Needless to say a person who feels himself the target of these matters will inevitably ask is this a prelude to something serious and potentially life threatening? For those charged with supervision, the conclusion might well be that elaborate enquiries as to the perpetrators of these intrinsically trivial acts may have the effect of increasing the disharmony and the hostility towards Mr Walgama himself. If hypothetically the perpetrator of these matters, or perpetrators if more than one, were established - let us suppose it was a hypothetical individual Mr X - If any significant sanction were applied to him, (he would presumably be an ardent unionist), this might make Mr X a martyr to the management and Mr Walgama with the net result for Mr Walgama's security at work might be a threatened. In summary, therefore, I am satisfied that Toyota, in a general sense, took reasonable steps and that with respect to any of the further steps advocated in relation to the elements of the complaint which had been proven those further proposed steps would not have been reasonable either having regard to the resources that they would have required or the potential backlash against Mr Walgama that they might have created.

The claim with respect to the advancement to TR6 is not now being pursued. Accordingly this proceeding should be dismissed. I have heard no submission on costs and so I will reserve them.

Walgama v Toyota Motor Corporation Australia Ltd

At a glance

Court

Decision date

Source

Judgment (94 paragraphs)

Walgama v Toyota Motor Corporation Australia Ltd (Anti Discrimination) [2007] VCAT 1318 (2 August 2007)

Parties