WILSON v BUDSOAR PTY LIMITED & ANOR

COUNSEL : S Winters - Claimant R T Beech-Jones - Opponent Paul Denmeade & Co - Claimant SOLICITORS : Friend & Hazard - First Opponent Equal Opportunity Tribunal - Second Opponent CATCHWORDS : APPLICATION FOR LEAVE TO APPEAL;; DISCRIMINATION - ground of race - remedies - damages - economic loss - whether claimant was to have her employment lawfully terminated ACTS CITED : Anti-Discrimination Act 1977 Industrial Relations Act 1988 CASES CITED: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 DECISION : Application for leave to appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40721/98 SHELLER JA COLE AJA

1 SHELLER JA: The claimant, Janine Wilson, applies for leave to appeal from a decision of B M James J given on 3 September 1998 dismissing her appeal by summons pursuant to s118 of the Anti-Discrimination Act 1977 from a decision of the second opponent, the Equal Opportunity Tribunal (the Tribunal) given on 30 March 1998. In an earlier decision of 27 June 1996 the Tribunal had found that Budsoar Pty Limited, the respondent and the first opponent on this application, had discriminated against her on the ground of race in dismissing her from its employment on 12 February 1993 in contravention of ss 7 and 8 (2) of the Anti-Discrimination Act as in force at the time of her dismissal. In the decision appealed from the Tribunal held that the claimant was not entitled to any damages for economic loss in consequence of her discriminatory dismissal. 2 The claimant, who is a white woman, is a journalist. In May 1991 she became the first permanent full time editor of a publication called "The Koori Mail" published in Lismore. The newspaper circulates principally among aborigines. In January 1992 Budsoar took over the administration of The Koori Mail and became the claimant's employer. The directors of Budsoar were of aboriginal descent. The board appointed a general manager who until July 1992 was Mr Gary Martin and subsequently Mr John Toohey. 3 In December 1992 the board of Budsoar appointed Mr Snell as an independent consultant. At a meeting of the board on 2 December 1992 it was resolved to place the senior employees of Budsoar, including the claimant, on 12 months written contracts of employment. A form of contract was tendered to the claimant but she, after taking advice from a Media, Entertainment & Arts Alliance Union representative, did not sign the contract. 4 On 13 January 1993 Mr Snell told the claimant it was the intention of the directors of Budsoar to replace her as editor with an aboriginal. On 15 January 1993 Mr Snell recommended to the board at an informal meeting that the claimant be dismissed. He gave three reasons:

2. That the production costs of The Koori Mail were too high;

3. That the claimant should be replaced by an editor who was black, that is, aboriginal. 5 The claimant was dismissed by a letter of 12 February 1993 with one week's pay in lieu of notice. On 16 February 1993 the claimant brought a complaint against Budsoar pursuant to the Anti-Discrimination Act alleging she had been discriminated against on the ground of race by Budsoar in dismissing her from its employment. Proceedings were also brought on her behalf in the Australian Industrial Relations Commission (AIRC) pursuant to the Industrial Relations Act 1988 seeking reinstatement or, alternatively, compensation. 6 On 21 June 1993 a decision was given in the AIRC by Commissioner Merriman who declined to order reinstatement because he found that the working relationship between the claimant, the general manager (Mr Toohey) and the board in late December 1992 and mid-January 1993 was "very tense and bordering on unworkable" and "a proper working relationship could not be established unless substantial changes occurred". However, the Commissioner ordered that Ms Wilson be paid an additional twelve weeks' pay and amounts for superannuation and leave entitlements. 7 The claimant's complaint under the Anti-Discrimination Act was referred by the President of the Anti Discrimination Board to the Tribunal. In its decision of 27 June 1996 the Tribunal found that the claimant had been discriminated against on the ground of her race in her being dismissed from Budsoar's employment and that her complaint was substantiated. The Tribunal declined to order that a public apology be given, and further declined to award any damages for alleged emotional upset or financial or economic loss suffered by the claimant. The Tribunal did, however, award her $2,000 as general damages. 8 The claimant appealed against that part of the Tribunal's decision in which it refused to award any damages for economic loss. On 28 November 1997 Simpson J upheld the appeal on the ground that the Tribunal had erred in law in holding that the claimant had been fully compensated for any economic loss she had suffered by the award made by the AIRC, without itself first making an assessment of the damages to which she was entitled. Simpson J set aside the decision of the Tribunal in so far as it related to the refusal to award the claimant damages for economic loss and referred the matter back to the Tribunal for the assessment of damages in accordance with her judgment. On 30 March 1998 the Tribunal gave its decision which was the subject of the appeal to James J. 9 At 4 of its judgment of 30 March 1998 the Tribunal said: "It is clear in our view, and having reviewed the evidence in this matter, that the focus of the Tribunal's decision in relation to the finding of discrimination concerned the manner in which that dismissal occurred and in particular the failure of the respondent to give reasonable notice of termination and to give Ms Wilson an opportunity to again put her point of view regarding her continued employment with the organisation. This of course was in the context where the respondent had been facing financial difficulties, the Board had taken steps to review the future of the Koori News [sic] and had appointed a consultant to examine the problems facing the organisation and its future. It was unfortunate perhaps for Ms Wilson that this occurred at the same time the relationship between her and the senior management had become unworkable but, regrettably for her, that was the situation in which she found herself. Without doubt the Board had formed the view that it intended to dismiss her and nothing that we have seen in the evidence, having reviewed it, suggests to the contrary." 10 Having regard to Commissioner Merriman's decision the Tribunal concluded that the appropriate or reasonable period for notice of determination was three months and that it was likely that the claimant's dismissal would have occurred in February or, at the latest, March 1993. In these circumstances she was entitled to wages up until the middle of May and, at the latest, the middle of June 1993. The Tribunal said at 5-6: "Making an allowance for the possibility that having received proper advice as to the manner in which it was appropriate to terminate the employment relationship and to review again the position of Ms Wilson and also to give three months notice, we think that the probable position, bearing in mind the evidence in this case, is that no later than 21 June 1993, …….the date of Mr Merriman's decision in the Australian Industrial Relations Commission, the employment would have been properly brought to an end. That is, that had Ms Wilson been treated in a non-discriminatory way her position on the evidence is that by the end of June 1993 the employment relationship with the respondent would have been brought to an end in a lawful manner." 11 The Tribunal took into account the wages which the claimant had actually received between February and June 1993 and the amount of the award by Commissioner Merriman and found that the total of those amount exceeded the damages which would be awarded for economic loss, with the consequence that the claimant was not entitled to any damages for economic loss. 12 In his reasons for judgment at 11 James J said that in the summons instituting the appeal from the Tribunal's decision of March 1998, a number of errors were alleged, the majority of them being stated only in very general terms. The two specific errors of law which were alleged were those in sub-paras (c) and (d) of para 3 of the grounds of appeal in the summons, namely: "The Tribunal erred in law in speculating that the Plaintiff would have been dismissed from her employment in or about June 1993 if she had not earlier been unlawfully discriminated against by the First Defendant by being dismissed from her employment in February 1993. The Tribunal erred in law in finding that loss or damage suffered by the Plaintiff by reason of the First Defendant's conduct in dismissing her from her employment only continued until about June 1993." 13 At 11-12 his Honour said that at the hearing of the appeal the key questions to be determined became crystallised as follows: "1. Did the Tribunal in its second judgment err in law in not assessing damages for economic loss on the basis that in its first judgment the Tribunal had found that Budsoar unlawfully discriminated against Ms Wilson on the ground of race in dismissing her from its employment, as distinct from finding that Budsoar unlawfully discriminated against Ms Wilson on the ground of race, merely in the manner in which it had dismissed her? 2. Did the Tribunal in its second judgment err in law in finding that, if Ms Wilson had not been unlawfully discriminated against, her employment by Budsoar would in any event have been lawfully terminated, the termination becoming effective in about June 1993? 3. If the Tribunal did not err in law in making a finding as in 2, did the Tribunal err in law in taking such a finding into account in assessing damages for economic loss so as to conclude that no damages for economic loss should be awarded to Ms Wilson?" 14 James J referred to the decision of this Court in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-7 and set out the following passage from Glass JA's judgment at 156-157: "Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: .…….. Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention, although it will correct perverse or unreasonable applications of law to the facts found." 15 James J then went on to deal with the first question he posed and said at 15-16: "As I have found that the Tribunal in its first judgment found that Budsoar unlawfully discriminated against Ms Wilson on the ground of race in dismissing her from its employment, as distinct from merely finding that Budsoar unlawfully discriminated against Ms Wilson on the ground of race in the manner in which it dismissed her, I consider that in its second judgment the Tribunal erred in assessing damages merely on the basis of what economic loss Ms Wilson had suffered by reason of the manner of her dismissal. However, this error would be immaterial, if the other key questions are resolved in favour of Budsoar." 16 His Honour then turned to the second question and said that it had been submitted on the claimant's behalf that the finding by the Tribunal in its second judgment that the claimant's employment would have been terminated in any event by about June 1993 was erroneous in law. The submission was that there was no evidence to support the finding and that the finding was purely speculative. I set out what his Honour said when he began to deal with this submission at 16: "It was submitted on behalf of Ms Wilson that the finding by the Tribunal in its second judgment that Ms Wilson's employment would have been terminated in any event by about June 1993 was erroneous in law. It was submitted that there was no evidence to support this finding and that the finding was purely speculative. Insofar as the Tribunal in its second judgment purported to rely on the decision of Commissioner Merriman, any such reliance by the Tribunal on the Commissioner's decision would be at variance with what the Tribunal had said in its first judgment, that it had found the Commissioner's observations 'no more than a point of reference in this case and of no assistance in determining the issues critical to the matters to be decided by us'. In any event, the Commissioner's finding that in late December 1992 and mid January 1993 the relationship between Ms Wilson, the general manager and the Board of Directors was bordering on the unworkable had been made in a different statutory context. In making this finding the Commissioner had relied partly on the evidence of Mr Snell and Mr Toohey, both of whom had given evidence in the proceedings in the Industrial Relations Commission but neither of whom gave evidence before the Tribunal, prompting the Tribunal in its first judgment to give itself a direction pursuant to Jones v Dunkell (1959) 101 CLR 298. It was submitted that the finding that the employment relationship had broken down and become unworkable in late December 1992 and January 1993 was inconsistent with Ms Wilson have [sic] been offered a twelve months contract of employment in December 1992 and with a finding made by the Tribunal in its first judgment that although tensions existed between Ms Wilson and the Board and the manager 'this position ….did not alter throughout the period of her employment'."

These submissions were repeated on this application. 17 James J observed that if there was no evidence to support a finding of fact by a tribunal and the finding could truly be described as speculative, the tribunal will have committed an error of law. However, his Honour was of the opinion that there was at least some evidence before the Tribunal which supported the finding that the Tribunal made that, if the claimant's employment had been terminated discriminatorily on the ground of race her employment would have been terminated in any event, a notice of termination being given at about the same time as she was summarily dismissed, so that, after allowing for a proper period of notice, her employment would have been terminated by about June 1993. His Honour referred to some parts of this evidence. 18 Before coming to deal with this evidence and the claimant's submissions, I shall quote further from the decision of the Tribunal of 30 March 1998 from which the appeal was brought. The Tribunal said at 4-6: "It is important to recall that in her evidence before this Tribunal at p73 on 1 April Ms Wilson said regarding the action that she took in the Australian Industrial Relations Commission immediately after her dismissal: 'That court hearing was about my dismissal, a request for reinstatement, and if I couldn't get reinstatement to have the three months in lieu of notice to which I was entitled under an award. It did not deal with the issues of the non-payment of wages which I am still owed and did not deal with the matter of racial discrimination, it dealt with my sacking and possibility of reinstatement and the non-payment of termination pay of which I was entitled.' We would comment in that regard that it was this Tribunal's role to deal with 'the matter of racial discrimination', to quote Ms Wilson. It was not this Tribunal's role to deal with the issue of non-payment of wages, that is past wages, and it was not suggested in the case before this Tribunal that that had anything to do with the discriminatory conduct found by the Tribunal. The same passage emphasises that from Ms Wilson's point of view the appropriate or reasonable period for notice of termination was three months. In his submissions Mr Friend [who appeared for Budsoar] acknowledged that three months was a reasonable period in relation to the giving of notice to Ms Wilson in the circumstances of this case. Bearing in mind that it is necessary for us to consider the position in which Ms Wilson might have been expected to be if the discriminatory conduct had not occurred, in our view that position would have been that she would have received proper notice of termination and been dealt with in a non-discriminatory manner in relation to her dismissal and that it was likely that that would have occurred in February or, at the latest, March 1993. In these circumstances Ms Wilson was entitled to wages up until the middle of May and, at the latest, the middle of June 1993. Mr Friend submitted that the relevant date for the determination of the wage entitlement consequential upon the discriminatory conduct in this regard was either 12 May or 21 June 1993 and, at the outside, December 1993. Ms Winters of course submitted that it was an ongoing loss and that it should be assessed as at today's date. Making an allowance for the possibility that having received proper advice as to the manner in which it was appropriate to terminate the employment relationship and to review again the position of Ms Wilson and also to give three months notice, we think that the probable position, bearing in mind the evidence in this case, is that no later than 21 June 1993, the second of the dates put by Mr Friend and the date of Mr Merriman's decision in the Australian Industrial Relations Commission, the employment would have been properly brought to an end. That is, that had Ms Wilson been treated in a non-discriminatory way her position on the evidence is that by the end of June 1993 the employment relationship with the respondent would have been brought to an end in a lawful manner. Bearing those considerations in mind the entitlement of Ms Wilson in those circumstances has been helpfully calculated by counsel. It is common ground that the amount awarded by Commissioner Merriman and the sum of $4,271 earned by way of mitigation in fact with the Northern Star Limited between February and June 1993 should be deducted from the claim for economic loss calculated for that period. That of course does not assist Ms Wilson in her claim for economic loss for the figure is negative. Accordingly the amount to which Ms Wilson is entitled under this head of damage is nil. It is important in coming to this conclusion to observe that the Tribunal has focused its attention on the consequential losses from an economic standpoint to Ms Wilson flowing from the actual discriminatory conduct found. It is noteworthy that Simpson J in her Honour's judgment at p6 said that upon undertaking the correct analysis, that is in accordance with the manner set out in her Honour's judgment, it may be that the same result that the Tribunal reached in its decision of 27 June 1996 will emerge. That is her Honour recognised that upon proper analysis the result for Ms Wilson under this head of damage may not be any different. That, as it has turned out, is in fact the position. Accordingly for the reasons stated the Tribunal makes no order in relation to the claim for economic loss pursuant to the Anti-Discrimination Act 1977 s113 subs 1 (b) (i). That is the decision of the Tribunal." 19 Turning to parts of the evidence before the Tribunal which supported its finding James J said at 17-20: "In her evidence before the Tribunal in 1996 Ms Wilson trenchantly criticised the general manager, Mr Toohey, who like Ms Wilson, was a white person. She described Mr Toohey as 'despicable', 'devious' and 'abusive'. She said that she had been subjected to 'a victimisation and harassment campaign' by Mr Toohey. She said that the previous general manager, Mr Martin, who was an aboriginal, had given an ultimatum to the Board of Directors 'that they had to get rid of me or he would go' and the Board had, on that occasion, chosen to accept Mr Martin's resignation. In his report to the Board of 12 February 1993 Mr Toohey strongly criticised Ms Wilson. He said inter alia: 'I believe that the editor has used 'standover tactics' to achieve her own ends and has reported to certain directors misguiding information regarding the true staff position. I feel it is time that the Directors took the bull by the horns and asked the other staff members their views of what has happened over a period of many many months. Most of the staff of the Koori Mail are very dedicated to the survival of the paper; it disappoints me that one person can have such a disruptive effect on the other staff. We now have a situation where a once happy staff are now all looking for alternative employment unless the present situation can be resolved. I believe that it would only take the resignation of one or two people to ensure the demise of the Koori Mail and a takeover by the Northern Star.' Mr Cameron, the Chairman of the Board of Directors, gave evidence before Commissioner Merriman and a transcript of his evidence was part of the evidence before the Tribunal. In part of his evidence Mr Cameron said: 'Gary (Martin) and Janine had a problem; that's right. We - we thought that Gary and Janine just had a problem; it was them two. But when you get two general managers and just one editor - the same editor fighting with two of them.' Mr Cameron gave further evidence: 'I spoke to them both (Ms Wilson and Mr Toohey) about, you know, the continual fighting, carrying on but it has - did not - did not stop; they were still at each others throats.' In December 1992 both Ms Wilson and Mr Toohey had been offered written contracts. Mr Toohey accepted the contract offered to him but, as stated earlier, Ms Wilson did not accept the contract offered to her. Mr Craig, the Union official, sent a communication to the Board on 12 January 1993, which included the following: 'Of more concern to me is the reported sentiment that the Board feels that the editor's failure to sign the proposed contract has somehow ruined the relationship between the Board and the editor and that they may not be able to continue working together.' Mr Snell gave evidence before Commissioner Merriman and a transcript of his evidence was before the Tribunal. In his evidence Mr Snell said inter alia: 'I thought one of the easiest ways to sort of get and find out about the publication was to sit down and talk one on one with every one of the staff members. And that is exactly what I did. And it became apparent that all of them, the whole lot, could not get on with Janine.' When asked what Ms Wilson's reaction was, Mr Snell said: 'That everybody was against her. I couldn't get any sensible reasoning from Janine because she was so wound up that the whole world was against her.' Later in his evidence Mr Snell said: 'If you're got a small staff and one staff member won't work with the other staff, or all of the other staff, it's not going to work, therefore something has - you either change all the other staff or you've got to change one.' There was accordingly evidence on which the Tribunal could find that by February 1992 the relationship between Ms Wilson and the general manager, a white person, had broken down, that the relationship between Ms Wilson and all the other staff had broken down, that the relationship between Ms Wilson and her employer had become unworkable and that as the relationship between Ms Wilson and two successive general managers, one black and one white, had broken down, this time her employment, rather than the employment of the current general manager, should be terminated and that, if Ms Wilson's employment had not been terminated discriminatorily, it would have very shortly afterwards been terminated in any event." 20 James J said that there being evidence to support the finding made by the Tribunal any illogicality or perversity in the reasoning process by which the Tribunal arrived at the finding would, in accordance with Azzopardi, not amount to an error of law. 21 In detailed written submissions Ms Winters, counsel for the claimant, submitted that in finding that there was at least some evidence before the Tribunal which supported a finding that the claimant's employment would have been lawfully terminated by about June 1993, his Honour erred in misconstruing the evidence before the Tribunal and the findings made by the Tribunal and by making findings of fact which would not have been made by the Tribunal. In examining these submissions it is important to emphasise that the central finding was that, at the relevant time when the dismissal occurred, as the relationship between the claimant and senior management of Budsoar had become unworkable her employment would have been terminated. It is also important to emphasise that James J was directing himself to whether or not there was evidence before the Tribunal to support this finding. His Honour was not making findings of fact but referring to the evidence that was before the Tribunal. 22 Reading the written submissions and listening carefully to the submissions that were advanced orally by Ms Winters, I observed that they strayed from this central issue to questions about whether the Tribunal should have accepted or received particular evidence or whether James J should have taken it into account. Thus, it is submitted, that evidence that the claimant did not hold the general manager of the first opponent in high regard was not supportive of a conclusion that the claimant would have been dismissed. However, it does support, as does Mr Toohey's criticism of the claimant, the Tribunal's conclusion that the relationship between her and the senior management had become unworkable. The claimant placed considerable reliance upon what the Tribunal had to say in its earlier decision of 27 June 1996 about the failure of Mr Snell and Mr Toohey to give evidence and the lack of explanation for their absence. 23 In his judgment James J said at 20-21: "There are in any event replies to the criticisms made of the Tribunal's reasoning, which deprive these criticisms of much of their apparent force. When the Tribunal in its first judgment said that it found the observations of Commissioner Merriman (and perhaps the evidence before him) 'of no assistance in determining the issues critical to the matters to be decided by us', I consider that the Tribunal had in mind the issues critical to whether Ms Wilson had been unlawfully discriminated against under the Anti- Discrimination Act . I do not consider that the relevance, to the proceedings in the Tribunal, of the finding by Commissioner Merriman that the relationship between Ms Wilson, the general manager and the Board of Directors was bordering on unworkable, was affected by the circumstance that Commissioner Merriman made that finding in a different statutory context. As regards Jones v Dunkell , Mr Cameron gave evidence both in the Industrial Relations Commission and before the Tribunal. It was not in dispute in the proceedings in the Tribunal that the relationship between Ms Wilson and both of the general managers had been very bad. At its highest, Jones v Dunkell merely enables inferences to be drawn by a tribunal of fact; it does not compel the drawing of inferences. There may be some inconsistencies between what the Tribunal had said in its first judgment, for example in par 8, and what it said in its second judgment (although I am not persuaded of this) but I do not consider that any such inconsistencies would amount to an error of law." 24 The same attack is made in relation to the evidence of Mr Cameron who was the chairman of Budsoar's board of directors. This evidence concerned the working relationship between the claimant and Mr Toohey. This was a critical issue as the Tribunal found it. Complaint was made that the Tribunal did not refer to particular evidence, although it was in evidence, and to alleged discrepancies in its findings. Reliance was placed upon the proffer of a written contract of employment to the claimant in December 1992 and the reasons for the claimant's not signing it, notably because that course had been recommended to her by a Union official on the ground that the contract was unfair. 25 Again the challenges to his Honour's reference to the Union official's communication to the board on 12 January 1993 and to what Mr Snell said, with all respect, simply does not deal with his Honour's conclusion that this evidence was, as it clearly was, evidence which supported the Tribunal's finding about the relationship between the claimant and senior management and its consequences. His Honour enlarged that finding in the paragraph which I have set out, but what his Honour did was no more than to summarise the evidence which led to the conclusion that there was evidence to support the Tribunal's finding and accordingly, for the reasons his Honour gave, no error of law. 26 With all respect, it does not matter, if it be the fact, which I am not satisfied it is, that there were inconsistencies. There was evidence to support what undoubtedly was the finding made on 30 March 1998 that the relationship had become unworkable. That was the foundation for the conclusion that the claimant would have been dismissed. 27 The claimant also challenged the Tribunal's adoption of June 1993 as the probable date on which the claimant's employment would have been terminated. This submission does not accurately state the Tribunal's conclusion, which was that the dismissal would have occurred at the latest in March 1993 and that the claimant was entitled to wages until, at the latest, the middle of June 1993. It is not clear to me that this point was argued before James J, but in any event the material before the Tribunal justified its conclusion. 28 In my opinion, the proposed appeal by the claimant would not succeed and accordingly, leave to appeal should not be granted. The summons for leave to appeal was filed out of time. The delay is explained in the affidavit of Paul Andrew Denmeade of 19 January 1999. In the circumstances I think the following orders should be made: 1. The time for filing the summons for leave to appeal is extended up to and including the day upon which the summons was filed; 2. The application for leave to appeal is dismissed with costs. 29 COLE AJA: I agree with Sheller JA. *****

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