Fonua v The Broken Hill Pty Co Ltd & Ors [1999] NSWADT 59

CITATION: Fonua v The Broken Hill Pty Co Ltd & Ors [1999] NSWADT 59

DIVISION: Equal Opportunity

APPLICANT: Liufau Fonua

The Broken Hill Pty Co Ltd RESPONDENT: Bruce Mewett Brad McMahon

FILE NUMBER: 37 of 1998

HEARING DATES: 06/07/1999; 06/21/1999

SUBMISSIONS CLOSED: 06/21/1999

DATE OF DECISION: 9 August 1999

G Ireland - Judicial Member BEFORE: L Mooney - Member J Strickland - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Aiding and Abetting; Race Discrimination - Employment; Victimisation -

MATTER FOR DECISION: Principal matter

Applicant: In person REPRESENTATION: Respondent: D Lloyd of Blake Dawson Waldron, Lawyers

ORDERS: 1.Pursuant to Section 111(1) of the Act, the Tribunal finds that the two complaints of unlawful discrimination and the complaint of victimisation are misconceived and lacks substance and the Tribunal directs that each complaint be dismissed. 2.Pursuant to Section 111(2) of the Act, the Tribunal orders that the Complainant pay the costs reasonably and properly incurred by each of the Respondents, assessed on a party to party basis, within twenty-one (21) days of the date on which the parties may agree on the amount of those costs, or failing agreement within 21 days after the date of this decision, such costs to be assessed in accordance with the provisions of the Legal Profession Act 1987.. The costs of such assessment to be included in this award of costs.

Background 1 The Complainant in this inquiry appeared in person before the Tribunal. Although the Complainant does not have legal training, he has experience in representations before Tribunals and Courts, having represented himself before this Tribunal in a claim he made against the First Respondent alleging discrimination on the ground of race arising out of his dismissal from the employment of the First Respondent in 1993, and by appearing in person on Appeals relating to that decision to the Supreme Court of New South Wales, the Full Court of New South Wales and to the High Court of Australia on an Application for Leave to Appeal. In each of these prior matters, the Complainant was unsuccessful. 2 In addition, the Complainant has represented himself in proceedings which he brought in the Supreme Court of New South Wales against the Honourable Jeff Shaw MLC, the Attorney General of the State of New South Wales and others, and an action against the First Respondent and six others, relating to his alleged unlawful dismissal by the First Respondent in 1993. These proceedings were unsuccessful and the Complainant subsequently sought leave to appeal against the latter decision to the New South Wales Court of Appeal. That Application was refused. On the last Hearing date before the Tribunal, the Complainant produced to the Tribunal copies of Notices which he had recently lodged with the High Court of Australia seeking leave to appeal against the decision of the New South Wales Court of Appeal. 3 The President of the Anti-Discrimination Board has referred this complaint to the Tribunal pursuant to Section 94(1)(c) of the Anti-Discrimination Act 1999 ("the Act") following receipt from the Complainant on 10th November 1997 of a written complaint arising out of the attendance by the Complainant at a two day retirement planning seminar sponsored by the First Respondent for a group of its employees. The Report of the President of the Anti-Discrimination Board to this Tribunal was exhibited to this Tribunal without objection from the Complainant. In his report to the Tribunal, the President states that on 30th December 1997 the Complainant requested that his complaint not be investigated further "as he did not want anyone who had dealt with his previous complaint to deal with this matter. Mr Fonua clearly indicated that this included the President of the Anti-Discrimination Board. Mr Fonua does not believe that the President can be objective in this matter as Mr Fonua and the President are parties to another matter before the Supreme Court." 4 On 26th March 1998 the Complainant requested the President to refer his complaint to this Tribunal for inquiry, without further investigation without further investigation. 5 On 27th and 28th August 1997 the Complainant attended a retirement planning seminar held by the First Respondent for a group of its employees at the Salamander Shores Motel, Port Stephens. The Complainant alleges that he attended the Seminar as an interpreter for an employee of the First Respondent, Mr Tuipulotu (Tom) Puliuvea, and that the First Respondent had agreed to pay the Complainant fees as an interpreter for his attendance at the seminar for the two (2) days. The Complainant claimed an hourly rate of Twenty five dollars ($25.00). In a statement which he delivered to the Payroll Office of the First Respondent on 29th August 1997, he claimed that he acted as an interpreter for 8.5 hours on 27th August 1997 and for 8 hours on 28th August 1997, making a total claim of $412.50 for the two days. The Complainant is an accredited interpreter in the Tongan language with the Ethnic Affairs Commission, which he stated, has a standard hourly rate of charge for interpreters of $34.00 per hour. The Complainant also stated that he had been paid by the First Respondent on two previous occasions when he had assisted Mr Puliuvea in 1994 as an interpreter when Mr Puliuvea attended a specialist Medical Centre at Hamilton. On these occasions his interpreter fees were paid to him by the First Respondent through the Ethnic Affairs Commission. 6 The Complainant is of Tongan Nationality. 7 The First Respondent acknowledged that it had agreed for the Complainant to attend the seminar to assist Mr Puliuvea in interpreting the seminar material and the papers and discussions delivered at the Seminar, but the First Respondent denies that it agreed to pay the Complainant for his services as an interpreter. The First Respondent acknowledges that it arranged for the Complainant to attend the seminar and the functions associated with it including the accommodation and meals without charge to the Complainant. 8 The evidence establishes that the arrangement for the Complainant to attend the seminar to assist Mr Puliuvea was made between Mr Siaosi (George) Puliuvea, the son of Mr Tuipulotu Puliuvea and Mr Bruce Mewett, the Second Respondent. Mr Siaosi Puliuvea did not give evidence before the Tribunal. The Second Respondent, in his evidence, stated that he first approached Mr Siaosi Puliuvea and suggested that he accompany his father to the seminar. Mr Siaosi Puliuvea agreed that it would be of help to his father if he were accompanied by a person who could assist his father in interpreting what was discussed at the seminar, but Mr Siaosi Puliuvea declined the invitation because he was unable to leave his work during the days of the seminar. The Second Respondent stated further that about two days after this conversation, Mr Siaosi Puliuvea contacted him again and he suggested that the Complainant would be a suitable person to accompany his father at the seminar. After discussing the proposal with his Supervisor, Mr McMahon, the Third Respondent, the Second Respondent again phoned Mr Siaosi Puliuvea and confirmed that it would be in order for the Complainant to attend the seminar to assist Mr Tuipulotu Puliuvea. 9 The Second Respondent, in his evidence, stated: "It is quite common for employees attending the Leisure and Lifestyle Seminar to bring a son, daughter or friend along to assist them during the Seminar, rather than their spouse. At all times during my conversations with Mr George Puliuvea, I understood Mr Fonua to be attending the Seminar as Mr Tom Puliuvea's friend. At no stage was any mention ever made of payment for Mr Fonua for interpreting services or on any other basis. The only agreement was that BHP would pay the expenses for Mr Fonua to attend (ie, transport, meals, accommodation and entertainment), in the same way that BHP pays for all other partners or support persons accompanying employees to attend the Seminar." The Second Respondent also stated that had a request been made for an official interpreter to be allowed to attend the seminar for Mr Tom Puliuvea, he would have arranged for a qualified paid interpreter to attend the seminar, as on other occasions, the First Respondent has arranged for qualified interpreters to attend seminars for the purpose of translating for employees. In this regard, evidence was placed before the Tribunal of a seminar held for employees of the First Respondent, of Macedonian background, for whom interpreters in the Macedonian language were provided at a seminar held in October 1998. 10 The Complainant stated that about 5 days before the seminar Mr Tom Puliuvea told him that he (Mr Tom Puliuvea) had arranged with the First Respondent for the Complainant to attend the seminar and that the First Respondent would pay the Complainant's fees for attending the seminar as an interpreter. 11 At no stage prior to the seminar did the Complainant have a conversation with an employee of the First Respondent, relating to his attendance at the seminar or in particular about the terms on which he would be attending the seminar. The Complainant relied on the arrangements that were made by Mr Siaosi Puliuvea for his attendance at the seminar and on the statement, which he alleged, was made to him by Mr Tuilulatee Puliuvea. 12 To support his claim for payment of interpreter's fees at the seminar, the Complainant produced a document signed by Mr Siaosi Puliuvea dated 28th August 1997 which is in the following terms: "To whom it may concern, I wish to note that when I spoke with Mr Bruce Mewett of BHP Human Resources Department on the phone concerning my father's scheduled two day seminar at Salamanda Shores Motel, Port Stephens, it was mutually made known between Mr Mewett and myself that Mr Liufau Fonua (George) would be accompanied my father, Mr Tuipulotu Puliuvea (Tom) as an interpreter in the Tongan language. Mr George Fonua is an interpreter in the Tongan language with the Ethnic Affairs Commission of New South Wales. Mr Bruce Mewett and I agreed that I would arrange for Mr Liufau Fonua to accompany my father under the understanding that my father, Mr Puliuvea needed an interpreter to accompany him. My father and Mr Fonua understood that he was accompanying my father as an interpreter in the Tongan language. Yours faithfully Siaosi Puliuvea (BA Psych) JP" 13 The Complainant stated that he typed this statement which was signed at his request by Mr Siaosi Puliuvea and the Complainant stated that he handed a copy of that Statement to the Human Resource Department of the First Respondent when he attended at its Payroll Office on 29th August 1997. The Tribunal notes that the Statement of Mr Siaosi Puliuvea does not refer to the financial arrangements under which it had been agreed that the Complainant would attend the seminar and in particular it does not refer to an agreement for the payment to the Complainant of a fee relating to his interpreting at the seminar. 14 At the conclusion of the seminar on 28th August 1997, while those attending were seated around a U shaped conference table, the Complainant walked from his position at the table across to the opposite side where he spoke to the Second Respondent. The Complainant stated that he asked the Second Respondent for payment of his interpreter fees and that the Second Respondent denied that there was an arrangement to pay the Complainant for interpreter fees. The Complainant stated that he told the Second Respondent that he would attend at his office on the following day with a formal claim. The Second Respondent stated that when he told the Complainant that he was not entitled to a payment for interpreter fees, the Complainant became abusive and that he spoke in an abusive way to the Second Respondent's wife who was sitting beside him. The Complainant denied that he had acted in an abusive manner towards the Second Respondent or his wife. 15 On the morning of the following day, 29th August 1997, the Complainant attended at the Payroll Office of the First Respondent, where he spoke to the Second Respondent. The Complainant stated that he handed the Second Respondent three documents which comprised a letter, attaching a formal Statement of Claim for the amount of $412.50 for interpreting fees and requesting a payment by way of a cheque by 3.00pm that day. The third document was a copy of a letter addressed to the Manager of the Department of Social Security, dated 27th August 1997, which informs the Department that: "I have been requested by BHP Steel Works to attend a retirement seminar as a Tongan interpreter in respect of Mr Tom Puliuvea who is currently employed by BHP. The seminar will be held at Salamanda Shores Motel for two days from 27th to 28th August 1997. I plan to claim $195.00 per day if BHP would agree to my proposal, etc. I shall inform you the agreed amount paid by BHP in my next fortnightly form, etc." Irrelevant parts of the letter have been omitted. 16 The Tribunal notes that the letter contains an acknowledgment by the Complainant that on 27th August 1997, there had not been an agreed amount to be paid by the First Respondent for his services. 17 The Respondents do not agree that a copy of the letter to the Department of Social Security was lodged with the Second Respondent by the Complainant on 29th August 1997. 18 The Complainant stated that he told the Second Respondent that the document contained his claim for payment and reminded him that on the previous day he had said that he would take up the matter with management. The Complainant said that the Second Respondent responded by saying, "no, no." The Complainant said that he then asked the Second Respondent to have a look at the Bill of Costs and that the Second Respondent then directed another gentleman who was at the counter with the Second Respondent in the payroll office, to "ring up the security to remove me from the office." The Complainant said that he saw this man use the telephone but he did not hear what was said. The Complainant stated that he then left and that he was very upset. 19 The Second Respondent stated that when the Complainant came to the counter at the Human Resources Services Office of the First Respondent, the Complainant presented him with the letter dated 29th August 1997 to which was attached his Statement of Account, and he said to the Complainant: "We have no intention of paying his Account but I will take this Account and show it to management and then we will pass it onto the company's solicitors." The Second Respondent stated that the Complainant became visibly upset and began yelling and screaming at him in words to the following effect: "You don't understand, there must be something wrong with your mind, are you stupid or something." 20 The Second Respondent said that he told the Complainant that he did not intend to be spoken to like that and he then instructed his assistant, Mr Braye to request security to come to the counter to escort the Complainant from the premises. Before Mr Braye was able to dial the number, the Complainant left the premises. 21 The Second Respondent continued that on 5th September 1997, he was contacted by telephone by Mr Siaosi Puliuvea, who said that his father was most upset by the remarks that were made to him by the Complainant and that his father also wishes to apologise to his wife for any embarrassment that the Complainant may have caused her. The Second Respondent also stated that in a telephone conversation with Mr Siaosi Puliuvea on 10th September, Mr Siaosi Puliuvea stated that the Complainant had come to him at work and presented him with a letter stating that BHP had agreed to pay him for his interpreting services and that he refused to sign it and that he wanted nothing further to do with the Complainant. 22 Mr McMahon, the Third Respondent, is the Employment Service Co-Ordinator of the Newcastle Steel Works of the First Respondent. He wrote a letter to the Complainant dated 17th September 1997, responding to the Complainant's letter of 29th August 1997. The Third Respondent advised the Complainant that as there was no agreement made with the Complainant by the First Respondent for the payment for his attendance at the seminar, the First Respondent rejected his claim for payment. 23 The Complainant then wrote a letter addressed to Mr Robert Kirby (sic.Kirkby), the Group General Manager of the First Respondent, dated 25th September 1997, in which he amplified the background to his claim for payment and concluded with a threat of legal action, "against you personally and other officers involved in these affairs on the ground of my race, etc." The letter attached a copy of "a supporting statement by Mr Siaosi Puliuvea dated 29th August 1997 confirmed that the arrangement was validly made for me to attend and be paid by BHP etc." By letter dated 23rd October 1997, Mr McMahon responded to the Complainant's letter to Mr Kirkby in which he stated that the company disagrees with the views expressed in the Complainant's letter but concludes: "notwithstanding the company's view that there exists no basis, legal or otherwise, for your claim for payment, the company will pay you the amount of $412.50 on an ex gratia basis. The company's cheque payable to you in this amount is enclosed." On receipt of that letter, the Complainant banked into his Bank Account the cheque that was enclosed. He had no further discussion with the First Respondent or the Second or Third Respondents. By letter dated 31st October 1997, he wrote a letter of complaint to the President of the Anti-Discrimination Board. 24 Following the reference by the President of the Anti-Discrimination Board to the Tribunal of the complaint against the First Respondent, the Complainant has made two applications to the Tribunal under Section 98 of the Act for the joinder of additional parties. On 18th May 1998 the Tribunal directed that the Second and Third Respondents be joined but refused the request for the joinder of Mr Kirkby as a Fourth Respondent. On 17th April 1999 the Tribunal refused the Complainant's application to join as additional Respondents, Mr Golding and Mr Gately, senior members of the Human Resources Section of the First Respondent.