CITATION: Tanase v South Eastern Area Health Service [1999] NSWADT 39 DIVISION: Equal Opportunity APPLICANT: Silvia Tanase RESPONDENT: South Eastern Sydney Area Health Service FILE NUMBER: 107 of 1998 HEARING DATES: 05/13/1999; 05/14/1999 SUBMISSIONS CLOSED: 05/14/1999 DATE OF DECISION: 15 June 1999 K Raphael - Judicial Member BEFORE: S Bullock - Member L Taksa - Member PRIMARY LEGISLATION: Anti-Discrimination Act 1977 APPLICATION: Race Discrimination - Employment; Victimisation - MATTER FOR DECISION: Principal matter Applicant: In person REPRESENTATION: Respondent: K English, South Eastern Sydney Area Health Service ORDERS: 1. The Tribunal awards the Applicant the sum of $12,500.00 1 Mrs Sylvia Tanase has brought a claim before this Tribunal against her former employers, Quality Food Services (QFS) which is a business unit of the South Eastern Sydney Area Health Service. Mrs Tanase claims that she was discriminated in her employment by reason of her nationality, her religion and her family status. Discrimination of this type is contrary to s8 and s40 of the Anti-Discrimination Act. 2 Mrs Tanase conducted her case herself with the assistance of her daughter. The Tribunal considered that Mrs Tanase's forensic skill was well above the level normally experienced from persons representing themselves and has no doubt that even with her slightly limited command of English she was able to put before the Tribunal all relevant facts and circumstances. 3 Mrs Tanase commenced employment as an assistant (Grade 1) in the catering section of Sutherland Hospital on 27 February 1995 and continued working in that capacity until she left the workplace, due to stress, on 30 May 1996. 4 Mrs Tanase complains that she was the subject of victimisation and harassment from three of her workmates which was caused by or significantly contributed to by those workmates' discriminatory sentiments. The workmates involved were Nadia Moussa, Grace Caffrey and Maureen Ravese. 5 Mrs Tanase gave evidence that her problems commenced on the first day of work. When she arrived at work she was not introduced to her fellow workers by a staff supervisor but was placed in the care of Nadia Moussa. Ms Moussa was apparently angry at having to show Mrs Tanase around and to familiarise her with the required work practices. She was offhand and rude to Mrs Tanase and said to her words to this effect: "Why do I have to do this job?" During the course of the day Ms Moussa asked Mrs Tanase some personal questions such as: "What religion are you? Are you orthodox?" To which Mrs Tanase replied: "I used to be Orthodox, now I am a Baptist". Ms Moussa responded: "What's wrong with orthodox, isn't it good enough for you?" Later on during the course of the day either Ms Moussa or one of the other two persons mentioned questioned Mrs Tanase on her marital status. Words to the following effect were said: "Are you married?" To which Mrs Tanase responded: "Yes". This was followed by: "Are you still married?" To which Mrs Tanase responded: "Yes". And then: "Are your children alone all day?" To which Mrs Tanase responded: "No, we are a happy family". Mrs Tanase was asked what country she came from and responded that she came from Romania. 6 It appears that from this very first day the group of three persons determined to make Mrs Tanase's life at Quality Foods difficult. They refused to work with her themselves and made every effort to have shifts changed so that they did not do so. They went out of their way to be unfriendly towards Mrs Tanase and they did not make any effort to welcome her into the general milieu of workers in this unit in which they formed an important clique. 7 Mrs Tanase gave evidence that she was very unhappy at work and felt that she was being victimised. She complained to a supervisor who told her to ignore the problem and be strong. Mrs Tanase felt that one supervisor, Ms Slattery, made an effort to hose down the harassment she was being subjected to but it did not succeed for very long. 8 It appears that shift swapping was an endemic problem with the unit. Members of staff would try and swap shifts for a number of reasons varying from family commitments to working with people they liked. Mrs Tanase was allowed to swap shifts so that she did not work on Sundays when she attended church. Eventually it was decided that something had to be done about shift swapping and the manager, Mr Satya Swami, prohibited it. 9 Mrs Tanase gave evidence that in January 1996, she was in the scullery area. There was no one there except herself when Nadia Moussa came in. She began to complain about her shifts and the fact that Mrs Tanase had been requested to work in the Meals-on-Wheels section. Mrs Moussa got heated with Mrs Tanase and eventually attacked her, twisting her head and pulling her hair saying: "What do you think? You get everything you want here." 10 Later that month, on or about 10 January whilst Mrs Tanase was working in the Meals-on-Wheels section she was required to pull a very heavy trolley. She sought help but no one would help her. She then pulled the trolley herself and became injured. 11 Mrs Tanase claims that about two weeks after the incident in the Meals-on-Wheels she was responsible for work in the psychiatric department. She expected that the trolley that she was going to take around would have been filled but the people on the shift beforehand who should have filled the trolley did not do so. She complained to the supervisor who referred the matter to Mr Swami who told her that he would talk to the ladies about the way they were treating her. She believes he did talk to them but nothing really improved. She complains that at one stage she was working on what appears to be a type of production line to load trays with hot food. For some reason she missed loading one and the worker next door to her instead of holding the tray so that she could load it, allowed the tray to go through empty and as a result Mrs Tanase got into trouble. 12 On about 28 May 1996 Mr Swami called a meeting and told all the workers that a decision had been taken to stop the shift swapping. Nobody would be allowed to swap their daily or weekly roster. At the end of the meeting Grace Caffrey asked Mr Swami if this included Sunday swapping. He said that it did. The next Sunday 30 May 1996 Grace Caffrey was supposed to be working with Mrs Tanase. She refused to work with Mrs Tanase. She sent a friend to speak to Mrs Tanase and ask if Mrs Tanase would swap shifts so that she did not have to work with Grace. This was on Sunday morning. Mrs Tanase originally agreed but by later in that morning she realised it had been specifically forbidden by Mr Swami so she made it plain that she would not change. 13 When Mrs Tanase arrived for her shift on Sunday afternoon she couldn't find the trolley she was meant to be working on with Grace Caffrey. She went to see the supervisor and told her. The supervisor entered the area where the trolley was meant to be and they couldn't see it. The supervisor told Mrs Tanase to send Grace down to her office and when Mrs Tanase told Grace to go and see the supervisor Grace abused her. She said words to the following effect: "You always get what you want. What do you think you are here? Goodie goodie one?" Grace went down to see the supervisor but never came back and Mrs Tanase had to complete the job herself. 14 When Mrs Tanase came down to the office after her shift she saw Katie Rogers, one of the supervisors. Ms Rogers asked Mrs Tanase to speak to her about the problems that she was having but Mrs Tanase told her that these matters should be sorted out by management. Mrs Tanase had been suffering sick headaches and migraines from the problems that she had been having in the workplace and decided that she could no longer remain there. 15 The evidence described above was all given by Mrs Tanase. As will be seen later it was not contradicted by any other witness and the Tribunal has no reason to disbelieve anything which she has said. Indeed the witnesses who were called corroborated most of what Mrs Tanase said. 16 Mrs Tanase called two witnesses. The first was Ms Nadia Souda. Mrs Souda informed the Tribunal that she had worked at the Sutherland Hospital for eleven years before Mrs Tanase arrived. She agreed with Mrs Tanase that there was a group of women in the workplace who made it difficult for new members of staff. She specifically referred to Grace Caffrey and Nadia Moussa. She said that other women pushed those women to "do bad things to the new girls". She confirmed that two other new members of staff called Violet and Jenny were treated in the same way as Mrs Tanase had been treated. She said, "they gave them a hard time too". 17 Mrs Souda confirmed that Nadia Moussa had approached her to talk to Mrs Tanase on her behalf in relation to the hair pulling incident that Mrs Tanase had described. Mrs Souda also confirmed that she had heard discriminatory remarks in the workplace particularly some about Mr Swami being black and also remarks that "foreigners were taking over Australia". She certainly remembered that Mrs Tanase was the subject of victimisation from the clique of three women. 18 Ms Fran Slattery was also called to give evidence. Ms Slattery was a supervisor and she confirmed that Mrs Tanase was not liked and she had been victimised and harassed by Grace Caffrey, Nadia Moussa and Maureen Ravese. 19 Ms Slattery confirmed that Mrs Tanase came to see her on three occasions about being harassed and that on each occasion she went to the catering manager and informed him of Mrs Tanase's complaint. She told him "Sylvia feels she is being victimised". She said that Mr Swami assured her that he would deal with the problem but nothing was done. She stated that once she did have Nadia Moussa into his office but nothing came of that. She confirmed that Mrs Tanase complained to her of having headaches and nausea, that she worked whilst she was ill. She also confirmed that she was aware that Grace Caffrey would swap with other people in order not to work with Mrs Tanase. 20 Ms Slattery confirmed the evidence given by Mrs Tanase about what occurred on the last day although she was only there for part of the time. 21 In cross-examination Ms Slattery said that Mrs Tanase lacked confidence and didn't fit in all that well. She was quiet, not outspoken and did not have a great sense of humour. Ms Slattery said that some staff had been in the employment of the Hospital for a long time and the clique was made up from those people. She mentioned that there were people of many races in the kitchen and recalled that Mr Swami had two meetings with the staff in which he informed them that he would not tolerate people picking on other people. 22 The Area Health Authority called Ms Carmen Rechbauer who is the manager of QFS. Ms Rechbauer was a person in a senior position who did not appear to be fully aware of the problems that were occurring in the workplace before Mrs Tanase left. Once that happened and Ms Rechbauer was informed of the reason why, she took action in a way that is both complimentary to her and which points up the obvious lack of existing procedures within that workplace for dealing with this type of problem. Ms Rechbauer instituted proper EEO sessions, provided written material to the workers and made it clear to them that discriminatory behaviour would not be tolerated. She did not only do this. She made a real effort to bring Mrs Tanase back into the workforce. It is perhaps unfortunate that she stopped short of contacting Mrs Tanase herself because if she had done so she might have been successful. The fact is that Mrs Tanase felt so alienated by QFS by the time she left that there was very little that could be done to bring her back. It is for this reason that Mrs Tanase says that she was unable to conciliate her complaint and wished to see it disposed of by this Tribunal. 23 It is the view of this Tribunal that Mrs Tanase was subject to victimisation and harassment during the course of her employment. That victimisation and harassment appears to have sprung out of the first meeting between Mrs Tanase and Nadia Moussa when personal questions were asked and unacceptable remarks passed which bore upon Mrs Tanase's race, religion and marital status. The Tribunal is of the view that on the balance of probabilities the victimisation and harassment she suffered was as a result of this discriminatory attitude. The Tribunal also finds that management were aware of this situation and whilst Mrs Tanase remained employed took few steps to rectify it. On the other hand, immediately after Mrs Tanase left on these grounds, action was taken to ensure that the problem did not occur again. 24 Whilst the Tribunal sympathises with Mrs Tanase it does feel that she could have been slightly more accommodating to the Respondent in the area of conciliation of this complaint. The Tribunal finds that Ms Rechbauer's wish to bring Mrs Tanase back to the workforce was genuine and that it was supported by the supervisors and managers. The aim of anti-discrimination legislation is not to punish, but to educate and conciliate so that the causes of discrimination can be attacked and both the victims and the perpetrators be brought into harmony. 25 Mrs Tanase gave evidence to the Tribunal that she had commenced and settled one claim for workers compensation arising out of the incident with the trolley which has been described in these findings. She has also commenced and is continuing workers compensation proceedings against her employer arising out of stress induced by the harassment and victimisation in respect of which she complains to this Tribunal. We have taken all these matters into account in assessing the appropriate award to her. The Tribunal seeks neither to minimise Mrs Tanase's complaints nor to fail to recognise the changes which have come over the Quality Food Services since she departed. The Tribunal has also taken into account Mrs Tanase ability to recover in another jurisdiction for what are essentially the same complaints. The Tribunal awards Mrs Tanase the sum of $12,500.00. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.