Humiliation of discrimination complainant costs council $4,000

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Humiliation of discrimination complainant costs council $4,000

Despite being cleared of discriminating against a female outdoor employee, Kempsey Shire Council will still end up paying $4,000 in compensation for pain and suffering as a result of its poor handling of the complainant’s grievances.

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10/03

 

Despite being cleared of discriminating against a female outdoor employee, Kempsey Shire Council will still end up paying $4,000 in compensation for pain and suffering as a result of its poor handling of the complainant’s grievances.

The NSW Administrative Decisions Tribunal found the council victimised the employee when, in a misguided attempt to investigate her allegations, it aired her complaints at a meeting of outdoor workers prompting many of her colleagues to vent their displeasure with her.

Background

The employee, a labourer in Kempsey Shire Council’s Parks and Gardens division, alleged that the council sexually discriminated against her and that it victimised her contrary to the provisions of s50 of the Anti-Discrimination Act 1977.

The employee alleged she was subject to derogatory comments from her predominantly male colleagues, such as being told 'Women shouldn't be in men's jobs'; 'A woman's place is in the home chained to the kitchen'; 'Quit your job and let a man have it'; and, 'You should wear tighter shirts and shorter shorts'. She also alleged that her colleagues displayed pornographic posters in the workplace.

The Administrative Decisions Tribunal heard that following a disagreement at a union meeting a male colleague verbally attacked her yelling repeatedly: 'You stupid f**king sheila'. The colleague was placed on probation, but the employee complained that this was an inadequate sanction.

The employee further alleged that she had been targeted by another colleague who, while generally acknowledged to be a reckless prankster, on one occasion reversed a truck into a cherry picker she was working on. She later accused him of flicking a spider into her face while they were travelling in the council truck - an action which prompted her to punch him in the face.

She then claimed that when interviewed about the incident, her supervisor 'bombarded her with criticism'. She attempted to take her complaint to a more senior manager, but when he was not immediately available, she took time-off sick and never returned.

Findings

The tribunal said it was clear that some of the employee’s colleagues expressed the view that women were not welcome in 'their workplace'.

However, it did not find that these types of comments were repeatedly and relentlessly made to the employee. 'These things are a matter of degree. "Harassment" connotes some sort of systemic approach, a constancy and a persistence in the conduct ... Occasional expressions of opinion, even if boorish or vulgar, do not have the necessary characteristic of persistence which constitutes harassment.'

On the question of whether the employee was 'targeted' by the colleague who threw the spider at her, the tribunal found that the man from time-to-time annoyed all his work colleagues and acted in a reckless manner around them.

However, it could not be satisfied that she was, as she alleged, 'singled out' by him for some sort of 'special treatment'. It said that even if it could be shown that he intentionally flicked the spider at her, the question remained whether he did so because she was a woman as opposed to a colleague upon whom he was perpetrating one of his practical jokes or reckless pranks.

The tribunal concluded that the conduct might have constituted some sort of assault, but it could not be satisfied that it constituted unlawful, gender-based discrimination. The tribunal went on to reject the suggestion that the employee was discriminated against by her supervisor after she hither colleague. It said it was not satisfied that the treatment she was afforded was less favourable than a male employee in comparable circumstances would have received.

Investigation 'poor'

Having found no case for the employee’s allegations of unlawful discrimination, the tribunal considered her contention that she was victimised after making her complaints at a meeting of outdoor employees. 

The council said it called the meeting to discuss a number of problems that had been brewing in the division and not just those relating to the employee. She claimed that the meeting’s convenor deliberately undermined the veracity of her complaints as well as echoing one of the baser comments from the floor.

The tribunal said to successfully claim victimisation, the employee would have to show firstly that she was subjected to a detriment and, secondly, that this was 'on the ground that' she had made an allegation against the council.

The tribunal found that, whatever the original plan, the focus of the meeting was on the employee’s complaints. It was clear that 'but for' her complaints, the meeting was unlikely to have occurred or have been conducted in the way it was. It said the evidence supported a finding that the meeting constituted a detriment. 'In the course of the meeting the details of her many grievances were aired. A number of [the employee’s] assembled colleagues were displeased with her and said so.'

The tribunal concluded that the meeting was 'a very poor way of conducting any sort of investigation into the merits of the complaints ... and that should have been obvious to the organisers of the meeting from the outset'.

It said that if the purpose of the meeting was to get to the heart of the matters she had raised, the appropriate course would have been to take evidence from witnesses individually. Discussing the matters in a group had the potential to taint evidence and place witnesses under peer pressure to accept the group view.

The tribunal went on to find that, when the details of the meeting became known, as was inevitable, the employee felt humiliated and embarrassed. It said this outcome was a foreseeable but unintended consequence of council's decision to hold the meeting and accordingly found the employee was 'subjected' to a detriment.

Given this finding the tribunal said the necessary elements of victimisation were made out and awarded $4,000 in compensation for pain and suffering.

See: Denmeade v Kempsey Shire Council & Ors (No.2) [2003] NSWADT 225, (30 September, 2003).

 

 

 

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