Appeal Panel CITATION: Commissioner of Corrective Services -v- Aldridge (No. 2) [2002] NSWADTAP 6 APPELLANT PARTIES: Commissioner of Corrective Services RESPONDENT Richard Aldridge FILE NUMBER: 999007 HEARING DATES: 06/11/2001 SUBMISSIONS CLOSED: 12/20/2001 DATE OF DECISION: 03/25/2002 Aldridge -v- Commissioner of Corrective Services [1999] NSW ADT 33 DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Rees N - Judicial Member; Mooney L - Member CATCHWORDS: leave to extend to the merits - Race Discrimination - in work MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 37 of 1997 DATE OF DECISION UNDER APPEAL: 05/25/2001 LEGISLATION CITED : Anti-Discrimination Act 1977 Aldridge -v- Commissioner of Corrective Services [1999] NSWADT 33 Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5 Director -General of Education v Breen [1982] 2 IR 93 Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley (1999) 48 NSWLR 161 CASES CITED: McCormack v The Commissioner of Taxation of the Commonwealth of Australian 1979 143 CLR 284 University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Ardeshirian v Robe River Iron Associates (1990) EOC 92-299 Metwally v University of Wollongong (1984) EOC 92-030 Rugema v Gadsten Pty Ltd t/a Southcorp Packaging (1997) EOC 92-887 Hill v University of New England (1990) EOC 92-291 APPELLANT REPRESENTATION: P Menzies QC with T Anderson, barristers RESPONDENT K Eastman, barrister ORDERS: The complaint of discrimination on the ground of race is dismissed. Introduction 1 Mr Aldridge lodged a complaint with the Anti-Discrimination Board on 25 March 1996. He alleged that his employer, the Commissioner of Corrective Services (the Commissioner) had discriminated against him on the grounds of race and disability and that he had been the subject of victimisation in employment. On 25 May 1999 the Tribunal handed down a decision in Aldridge -v- Commissioner of Corrective Services [1999] NSWADT 33. The Tribunal found Mr Aldridge's complaint of discrimination on the ground of race substantiated and, among other things, ordered the Commissioner to pay Mr Aldridge $10,000.00 in damages for breaches of the Anti-Discrimination Act 1977 (AD Act). No findings or orders were made in respect of the victimisation complaint. Mr Aldridge withdrew his complaint of discrimination on the ground of disability during the course of the Tribunal's inquiry. 2 The Commissioner appealed against the Tribunal's decision and the Appeal Panel handed down its first decision on 18 April 2000. The Appeal Panel upheld the Commissioner's appeal and set aside the Tribunal's decision and orders. With the exception of one alleged incident the Appeal Panel dismissed Mr Aldridge's complaint of discrimination on the grounds of race. The incident which was not included in that order was Mr Aldridge's complaint of racial discrimination based on allegations of abuse directed by Mr Woodham (Assistant Commissioner, Department of Corrective Services) to Mr Aldridge at a meeting on 23 August 1995. The Appeal Panel granted the Commissioner's application that the appeal extend to a review of the merits of the Tribunal's decision in relation to that incident (the "August meeting"). 3 In relation to the victimisation complaint, the Appeal Panel ordered that the parties be given an opportunity to make submissions concerning the final orders (if any) which should be made in relation to that complaint. Appeal Panel's reasoning in the first decision 4 In our first decision (Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5) we made various observations in relation to evidence concerning the August meeting. We concluded (at [72]) that the Tribunal had found that Mr Woodham's conduct at that meeting amounted to a breach of s 8(2)(c) of the AD Act. That section states that: It is unlawful for an employer to discriminate against an employee on the ground of race: (c) by dismissing the employee or subjecting the employee to any other detriment. 5 We were satisfied that the abuse found by the Tribunal to have occurred at the August meeting amounted to "subjecting the employee to any other detriment" within the meaning of s 8(2)(c). However, in order for that conduct to amount to a contravention of the AD Act it is necessary to establish that Mr Aldridge was discriminated against on the ground of race. 6 So far as it is relevant to this case, s 7 of the AD Act states that: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or 7 The Appeal Panel set aside the Tribunal's findings in relation to the August meeting because it had not asked itself an essential question. We said, at [73] to [75] and [89] that: Despite the fact that this incident falls within the relevant substantive provisions of the Act we have concluded that the Tribunal's ultimate findings in relation to this matter must again be set aside for the Tribunal failed to ask itself and determine whether Mr Woodham's abuse amounted to the Commissioner treating Mr Aldridge, on the ground of his race, less favourably than the Commissioner treated, or would have treated, a non-Aboriginal person in the same or similar circumstances. No differential treatment analysis was undertaken and the Tribunal's findings on the question of causation are equivocal and incomplete. The Tribunal should have determined whether Mr Woodham did abuse, or would have abused, non-Aboriginal persons in the same or similar circumstances. If Mr Woodham abused everyone, regardless of their race, the Tribunal would have been forced to conclude that while his employment practices may have fallen well short of the ideal, they did not constitute unlawful racial discrimination. Even if the finding was that Mr Woodham did treat Mr Aldridge less favourably than he did treat or would have treated other Departmental employees in similar circumstances, the Tribunal should have gone on to determine the question of causation. That question is whether the abuse was directed at Mr Aldridge on the ground of his race. The Tribunal found that it was the view of one witness (which we take to be a reference to Mr Mulvany) that "such language was used to suggest that it was racially motivated." This is not sufficient evidence on which to base a conclusive finding in relation to the issue of causation. The Tribunal should have reached its own conclusion after assessing all of the relevant evidence, whether it was satisfied that Mr Woodham acted as he did on the ground of race. In the language used by Street CJ in Director -General of Education v Breen [1982] 2 IR 93 at 95 it was necessary for the Tribunal to conclude that Mr Aldridge's race had "a causally operative effect" upon Mr Woodham's decision to abuse Mr Aldridge. Without this conclusion it was not open to the Tribunal to find that the Commissioner had discriminated against Mr Aldridge on the ground of his race. Consequently, for the reasons we have given, the Tribunal's conclusions in relation to the abuse directed to Mr Aldridge by Mr Woodham cannot stand. There was evidence which could have permitted the Tribunal to make findings of fact and draw inferences from those findings which were favourable to Mr Aldridge. Similarly, there was evidence which could have permitted the Tribunal to make findings which were favourable to the Commissioner. However, because the Tribunal failed to pose and answer the correct questions concerning the relevant substantive provision of the Act and the elements of the definition of direct discrimination we have already determined that its conclusions must be set aside. Nevertheless because we have concluded that there was some evidence which could have permitted the Tribunal to find in favour of Mr Aldridge in relation to the incident on 23 August 1995 we cannot make orders in relation to that incident, in substitution for those made by the Tribunal, without examining the evidence ourselves. Given the course which we have decided to follow in relation to this matter no benefit is achieved by setting out at length the findings of fact open to the Tribunal which could have caused it, correctly stating and applying the law, to find in favour of either party in relation to this matter. Issue 8 Against this background, we must now determine whether Mr Woodham's conduct at the August meeting constituted unlawful discrimination on the ground of race. The questions we must ask ourselves are: - did Mr Woodham treat Mr Aldridge less favourably than in the same circumstances, or in circumstances which are not materially different, he treated or would have treated a person of a different race, and - if so, was this less favourable treatment on the ground of Mr Aldridge's race. Conduct of the Appeal Panel Hearing 9 On 17 July 2001, at a Directions Hearing, the Appeal Panel determined, among other things, that it would not adopt "any findings made or purported to be made by the Tribunal below" and that it would make its own findings. Neither party disagreed with that approach. However, the issue of how the Tribunal should determine the credibility of witnesses, if that became necessary, was the subject of submissions by both parties. 10 In our first decision, we set out our preliminary views in relation to the kind of appeal we would be conducting having made an order to extend the appeal to the merits of one aspect of the decision. At [90] to [98] we said that: To this point we have dealt only with the Commissioner's appeal on questions of law made pursuant to section 113(2)(a) of the ADT Act. Section 113(2)(b) provides that an appeal may "with the leave of the Appeal Panel . . . extend to a review of the merits of the appealable decision." The Commissioner has sought leave for its appeal to extend to a review of the merits of the Tribunal's decision. We have decided to grant that leave in relation to part of the Tribunal's decision and allow the parties to argue the review of the merits before the Appeal Panel at a later date. While there was some mixing of questions of law and fact when this appeal was argued at no stage did we formally grant leave for the appeal to extend to a review of the merits of the Tribunal's decision. Having now granted that leave we should permit the parties to make submissions in relation to that part of the Tribunal's decision which is to be reviewed on the merits. The alternative to granting leave to extend this appeal to a review of the merits, is to remit the matter to the Tribunal to make determinations in accordance with the law as we have stated it. In determining whether to remit a case or determine it ourselves, at least two considerations must be borne in mind. The first is whether the justice of the case demands that the matter be heard afresh by the Tribunal, for example where the credibility of witnesses is a vital issue. The second is whether the interests of justice, in particular the speedy resolution of the matter, suggests that it should be finally resolved by an Appeal Panel. In this case, given that issues of credit are not paramount in relation to the abuse incidents, we believe that the matter should be finally resolved by the Appeal Panel. The language of section 113(2)(b) and of section 115, which is a grant of jurisdiction and powers, is a little unusual when an Appeal Panel is dealing with an appeal from a case in which the Tribunal has exercised its jurisdiction to make an original decision (see section 37 of the ADT Act), as opposed to its jurisdiction to review reviewable decisions (see section 38 of the ADT Act). The wording of the two provisions which apply to the Appeal Panel parallels that found in those parts of the ADT Act which deal with the reviewable decisions jurisdiction (see section 63 of the ADT Act). Section 115 of the ADT Act states that: (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside. When an Appeal Panel decides to permit an appeal to extend to a review of the merits of the decision under review, what form should that appeal take? While we will afford the parties an opportunity to make submissions in relation to this matter it may assist the progress of this appeal if we advance a tentative opinion. In Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297, Glass JA noted that, "Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics." He then went on to identify and describe six different types of appeal. In our opinion an appeal to an Appeal Panel which extends to a review of the merits falls within the category described by Glass JA as "appeals from a judge by way of rehearing." In such cases, according to Glass JA the following occurs: If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded." (at 297) Associate Professor Bernard Cairns in Australian Civil Procedure 4th edition (Law Book Co., Sydney 1996) at 637-638 elaborates on the description given by Glass JA in Turnbull: The court is not confined to a determination of whether the trial judge was wrong on the evidence presented at the trial. A rehearing is a new determination of the rights and liabilities of the parties rather than the correction of errors in the determination of the court below. Moreover, the rehearing is conducted on the basis of the law as at the date of the rehearing. A rehearing does not involve calling oral evidence at the appeal. The appellate court proceeds on the transcript of the evidence given at the trial. And further evidence that is allowed is admitted in documentary form such as an affidavit or deposition. Subject to any submissions which counsel wish to make, this is how we believe an Appeal Panel should conduct an appeal which extends to a review of the merits of an appealable decision. In our opinion we are not limited, as in a strict appeal, to correcting errors which the Tribunal may have made. We are required by section 115 of the ADT Act to reach our own decision in the matter taking into consideration any relevant factual material which was before the Tribunal, plus additional factual material which we admit into evidence and by applying the law as it stands at the time the appeal is heard. For the sake of completeness this form of appeal should be contrasted with "a rehearing de novo." Glass JA also described this type of appeal in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-8: All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time. Cairns (at p 636) elaborates on this description by stating that "a rehearing de novo requires a new trial or hearing before the appellate Court . . . and evidence must be called before the appellate court." We do not believe that section 115 of the ADT Act extends this far. While the Appeal Panel is required to exercise the jurisdiction which the Tribunal initially exercised, the Appeal Panel is not required to exercise this jurisdiction by starting the matter afresh and by conducting a hearing as it would be conducted in the Tribunal. Unless there are exceptional circumstances the appeal should be determined by considering the transcript, the documents admitted as exhibits, any additional factual material in documentary form which we choose to take into account and the submissions by the parties or their legal representatives. Consequently, subject to submissions made by the parties, the review of the merits of that part of the Tribunal's decision which deals with that portion of Mr Aldridge's complaint of race discrimination which concerns allegations of abuse directed to him by Mr Woodham will follow this form. 11 Both parties supported the decision of the Appeal Panel not to remit the case to the Tribunal. But they also submitted that the Appeal Panel would be making a legal error if we determined the credit of witnesses on the basis of the material before the Tribunal and submissions from the parties. In their view, if credit is an issue, we need to conduct a hearing de novo in relation to the August meeting and recall witnesses. Mr Menzies QC, for the Commissioner, gave an example of where, in his view, this proposition had been applied by the Court of Appeal. He submitted that Hill v Green; Jarvis v Buckley; Wood v Buckley; Young v Buckley (1999) 48 NSWLR 161 stands for the proposition that a Court (or Tribunal) must itself hear the witnesses in order to assess credit. That case involved the judicial review of a decision to penalise four teachers for disciplinary offences. The issue was whether the disciplinary authority failed to accord the applicants procedural fairness in the context of particular statutory provisions. Mr Menzies pointed to passages at pages 171, 179 and 193 from the decisions of Spigelman CJ, Sheller and Fitzgerald JA which suggest that if credibility is an issue, some element of an oral hearing was required to satisfy the requirements of procedural fairness. While we accept that procedural fairness may require hearing from all parties where credibility is in issue, that is not the situation in this case. The Appeal Panel is hearing an appeal from a decision of the Tribunal. There is no suggestion that the Tribunal did not afford procedural fairness to all parties. The fact that the Appeal Panel has extended the appeal to a review of the merits of the decision does not necessitate a de novo hearing where each witness is recalled to give oral evidence. 12 We also reject Mr Menzies' submission that McCormack v The Commissioner of Taxation of the Commonwealth of Australian 1979 143 CLR 284 obliges this Tribunal to recall witnesses if credit is an issue. The issue in that case was whether the profit on the sale of a property was taxable under the Income Tax Assessment Act 1936 (Cth). The key factual issue to be determined was the taxpayer's intention at the time of purchasing the property. In the words of Barwick CJ at 290, "the evaluation of the appellant and her husband as witnesses of truth was critical to the resolution of the question" of the purpose for which the land was purchased. Barwick CJ went on to find that the Board of Review had never evaluated the applicant as a witness of truth or otherwise. Neither did the Supreme Court see and evaluate the appellant and her husband as witnesses. Barwick CJ commented at p 293 in relation to the credibility of the applicant that: Whether or not she was to be believed in relation to the instant transaction undoubtedly, in my opinion, called for a viva voce examination of her. It was essential that she be evaluated and a conclusion drawn whether she was a truthful person when she said what her intentions were at the time of purchase. 13 There are at least two bases on which McCormack can be distinguished from the present case. Firstly, in McCormack , no Tribunal or Court had ever assessed the credibility of the appellant. Secondly, the appellant's credibility was the paramount issue in determining the purpose for which the land was purchased and, consequently, the outcome of the case. Neither of these two circumstances is present in this case. 14 In our view the credibility of witnesses is not a significant issue in determining this case. In order to make findings about what occurred at the August 1995 meeting, it is not necessary to determine whose evidence is to be preferred. The evidence, which is set out below, was broadly consistent. There were no serious discrepancies between the witnesses which were capable of being resolved by preferring the evidence of one witness, rather than another, based on an assessment of the credibility of competing witnesses. What was in issue was whether the events which transpired at the August 1995 meeting constituted unlawful discrimination on the ground of race. 15 There were at least three reasons for our determination that it was appropriate to permit the parties to make submissions about whether Mr Woodham's conduct at the August meeting constituted discrimination on the ground of race. Firstly, the evidence concerning that meeting had not been closely considered by counsel for either party at the first appeal. Secondly, the Tribunal had not posed and answered the correct questions in order to determine whether unlawful discrimination had occurred. Thirdly, on our own limited review of the evidence concerning that meeting, we felt it possible to argue in support of different conclusions about the legal consequences of the activities of Mr Woodham at that meeting. 16 In our original decision we distinguished this incident from the others which were said to amount to unlawful discrimination on the ground of race because, unlike the other incidents "there was some evidence which could have permitted the Tribunal to find in favour of Mr Aldridge." This was not an opportunity, however, for the parties to shore up or relitigate their respective cases. Both parties were legally represented at the Tribunal hearing and they are bound by the way they conducted their respective cases at that hearing. (See University of Wollongong v Metwally (No 2) (1985) 60 ALR 68). No submissions were made that we should accept fresh evidence, as opposed to additional evidence, concerning the August 1995 meeting. Consequently, we should examine the evidence concerning that meeting and determine whether Mr Woodham (and hence, the Commissioner) unlawfully discriminated against Mr Aldridge on the ground of race. 17 Ms Eastman, on behalf of Mr Aldridge, submitted that we should adopt the findings on credit that the Tribunal made. Indeed in her view, that was what we implied in the first decision. Ms Eastman relied on paragraph 91 of that decision (set out above at[10] to submit that we had taken the view that we did not need to assess the credit of any of the witnesses at the August meeting. She drew the inference from that passage that we would adopt the findings on credit made by the Tribunal. 18 That was not our intention, nor do we agree that that inference flows from our first decision. Our view, as expressed in paragraph 91, was that issues of credit were not paramount in relation to the August meeting. We envisaged that should issues of credit need to be determined we would do so on the basis of the material then before us, namely the transcript of evidence before the Tribunal and any submissions from the parties. 19 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1353 Gleeson CJ, Gaudron and Hayne JJ stated that there is no definitive classification of appeals and that the nature of an appeal must depend on the terms of the statute which confers that right. 20 Our preliminary view, which we now adopt, is that pursuant to s 113(2) and s 115, the Appeal Panel is conducting what is known as a "re-hearing" rather than a hearing de novo when it grants leave to extend an appeal to a review of the merits. As stated above, a "re-hearing" involves coming to our own decision in the matter, taking into consideration any relevant factual material which was before the Tribunal, plus additional factual material which we admit into evidence and by applying the law as it stands at the time the appeal is heard. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1353 Gleeson CJ, Gaudron and Hayne JJ made the comment that at 1353, that: Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. . . . However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. 21 On the basis of these observations, one factor which would indicate whether the Appeal Panel hearing an appeal on the merits is conducting a rehearing or a de novo hearing is whether an error of law must be identified before leave can be given to review the merits of the decision below. 22 Ms Eastman submitted that a person can appeal either on a question of law or, with leave, on the merits. In effect, an appellant must make an election as to which kind of appeal they wish to make. If leave is given for an appeal on the merits, then under s 115(2) the Appeal Panel may exercise all the functions that are conferred or imposed on the Tribunal at first instance. This means that the Appeal Panel must conduct the hearing de novo. 23 Mr Menzies argued that the appeal provisions in the ADT Act do not require the appellant to make an election between an appeal on a question of law and an appeal on the merits. He submitted that if an appeal on a question of law is upheld, then there is no need to deal with the merits. The need for a merits review only arises if no error of law is established. At that stage, an appellant may seek leave to have the appeal extended to an appeal on the merits. 24 The view the Appeal Panel has taken in the past does not accord with either the appellant's or the respondent's submissions on this point. In Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 the Appeal Panel said at [4] that: It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. 25 In interpreting s 113 in earlier cases, Appeal Panels have taken the view that the use of word "and" in 113(2)(a) and "extend" in 113(2)(b) suggest that the provision is cumulative. That is, finding an error of law is a pre-requisite to the Tribunal granting leave for an appeal on the merits. We are not persuaded to depart from this view on the basis of the submissions of either of the parties. 26 The conclusion that the identification of an error of law is a pre-requisite to leave being granted to extend an appeal to the merits supports our view that such an appeal is a rehearing, not a hearing de novo. (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1353.) Evidence in relation to August meeting 27 The following matters were not in dispute. Mr Aldridge is Aboriginal. On 23 August 1995 he was an employee of the Department of Corrective Services. He was an Aboriginal Project and Policy Officer in the Aboriginal Resources Unit. The functions of that position were to: - implement the recommendations of the Royal Commission into Aboriginal deaths in custody; - work with and develop policies and programs for Aboriginal inmates throughout NSW; and - hold discussions with members of Aboriginal communities and Aboriginal inmates about current issues and problems. 28 Mr Aldridge and other Aboriginal staff convened the August meeting to discuss the contracts for the Aboriginal post-release program. Mr Woodham was the Assistant Commissioner of the Department at the time of the meeting. Mr Aldridge was the most senior Aboriginal employee of the Department in an Aboriginal identified position. The meeting was attended by Mr Woodham and Mr Aldridge as well as other staff members of the Aboriginal Resources Unit, namely Colleen Sutherland and Dannie Mulvaney (both non-Aboriginal employees) and Malcolm Ramage and Tammy Carney (both Aboriginal employees). Ms Carney and another person present at the meeting, Mr Wright, did not give evidence at the hearing before the Tribunal. 29 Mr Aldridge gave evidence that he felt it necessary to persist in drawing Mr Woodham's attention to the position of Aboriginal inmates and Aboriginal staff of the Department. It was his perception that the Assistant Commissioner did not acknowledge or act on the issues of race discrimination against inmates and employees which Mr Aldridge raised with him. 30 Mr Woodham gave evidence that he perceived Mr Aldridge as a person who insisted that things had to be done his way and that anything else was unreasonable. This evidence concerning the perceptions which Mr Aldridge and Mr Woodham had of each other clearly suggests that there was some tension in their work relationship. 31 The meeting was due to start at between 5pm and 5.30pm. However it did not in fact commence until between 8pm and 8.30 pm as Mr Woodham did not arrive until that time. There was evidence concerning the reasons for Mr Woodham's delay. It was not clear whether these reasons were communicated to the other meeting participants at the time. 32 Evidence about what occurred at the meeting was given by five witnesses. We have set out their relevant evidence below: Oral evidence of Mr Aldridge Q: What was the abuse you suffered there? What happened? A: Well I was basically told that –we arranged a meeting for about 5, 5.30 and The Assistant Commissioner didn't turn up till approximately 8, 8.30. He walked into the room and basically said to me and some other people that he – well he said to me you can – basically you can get fucked and if you don't like working here I can get rid of you easily. Q: What did you take that to mean? A: Well basically what I took that to mean was that he was able to get rid of me and kick me out of my job, what he – I guess what he meant. (147, T-Z) Statement of Richard Aldridge, paragraph 16 When Assistant Commissioner Woodham and I met he was aggressive in his attitude towards me and other staff of the Aboriginal Resource Unit. At a meeting on 23 August 1995 which was arranged between staff members of the Aboriginal Resource Unit and Assistant Commissioner Woodham he abused me whilst discussing the problems within the Department saying, 'You can get fucked and if you don't like working here I will get rid of you' earlier I had raised issues of Aboriginal staffing shortages, lack of resources and inmate services. Evidence of Dannie Mulvaney Chairperson: Q. What was the set time for that meeting? A: The meeting was set during the day. I can't remember the specific time but I remember it was during the working day, and it wouldn't have been, I imagine a 10 o'clock meeting perhaps in the morning. That would have been the usual time for the meeting and throughout various postponements by the Assistant Commissioner, he in fact arrived well beyond the normal working day. The group had agreed to wait and I just have a vivid recollection of The Assistant Commissioner storming into the building, sitting down at that table, pointing to The Complainant and saying, "You can get fucked and if you don't like it, you can go somewhere else". Looking at Ms Sutherland, telling her to shut up and just a tremendous amount of aggression towards the people in that room. Q: Had they said anything to him before that outburst? A: Not that I can specifically recall. This to me was more than surprising, given the work that we were doing and the situation that we were in. I found it difficult to reconcile the behaviour of a senior administrator in the department and to the task of this group and just behaviour between professional people. I couldn't understand it. Friend: Q. Was there anything more about the meeting that you can recall, specific discussions or – A: There was a discussion that I had with The Assistant Commissioner briefly about his – after a period he seemed to have – some of his aggression had subsided and he was inquiring as to the progress that we had made in our reporting to the government on the department's implementation and our surveying the new recommendations that were particular to the department since its takeover of court escort and security and one specific area that I had involvement with was a policy directed at allowing family members of Aboriginal inmates being held in court cells and I asked whilst they were in court or police cells and I asked The Assistant Commissioner if there had been any progress in his approval of that particular policy and he again became aggressive and told me – he said, 'Well, you're not even Aboriginal' and I said, 'Yes, but I'm still making a contribution to this group'. I was more or less thrown off from the real reason that I was making the inquiry. Q: So there were a number of people at the meeting that you were unable to identify at this point in time? A: Yes Q: Do you find that strange having regard to the fact you have such a vivid recollection of the meeting? A: No. Q: Why not? A: As mentioned my recollection with the meeting is associated with Mr Woodham's aggressive behaviour, the language that he used and the person that he directed it at. Chairperson: Do you think that's related to his aboriginality? A: I do. Bullock: Why, why do you think that? A: Well when I reflect on that experience specifically Mr Woodham had already made an association and a difference – had already identified my not being Aboriginal and had targeted Richard Aldridge in front of all the other people in the meeting as somebody whom – he appeared to have a tremendous amount of anger and aggression towards – Chairperson: Because of his position, because of his A: His position Q: in the Department I mean? A: his position in the department. Bullock: Sorry, I don't understand that. What do you mean by – in terms of when you said that he had a tremendous amount of aggression against Richard Aldridge because of his position, what do you mean by that, can you just explain that? A: Well I think just there's such a power imbalance between the Assistant Commissioner of the Department of Corrective Services who has all these responsibilities and all these privileges as well and then to treat someone else who is not in the same position as him in such an appalling way in front of his peers it was just something that shocked me. That's why I remember it. I was literally shocked and disgusted by that behaviour. Q: Mr Mulvany, Mr Aldridge wasn't the only Aboriginal person there, was he? A: No he wasn't. Q: And yet you say he was singled out? A: Yes Q: Well he wasn't singled out because of his aboriginality was he? It must have been some other factor? A: He was singled out, I believe, because of his aboriginality and because of his position representing the other aboriginal people in that team, in that group. Q: Mr Mulvany, do you honestly put that forward as your evidence? Do you honestly put that forward as your evidence that he . . . A: Yes I do. Q: was singled out because of his race? A: Yes I do. Q: Mr Mulvany, Mr Ramage is an Aboriginal person? A: Yes. Q: Miss Carney is an Aboriginal person? A: Yes. Q: Nothing was said to them from what you say? A: Not that I can recall. Q: In terms of the meeting you said that he told Miss Sutherland to shut up, that was your evidence, do you recall giving that? A: I don't but I believe that. Q: When you first started giving evidence you said that he told Miss Sutherland to shut up? A: Yes, that's right. Q: She's a white person? A: That's right. Q: To that extent doesn't that lead you to understand that whatever aggression was being displayed at that meeting had nothing to do with the race of the persons who were participating but something to do with the policies and the attitudes of the people towards the work? A: No, that may be your suggestion but it's not – that's not – I don't agree with it. Q: Is that because you don't want to agree with it, you don't want to see it? A: No. It's because I have a different perception and a different way of seeing things because I worked in that group for a period of five months. I saw the way people within that group worked, I was a member of that team and I saw the way -–I had participated in that group. Evidence of Colleen Sutherland Q: And what can you recall, if anything, about that meeting of what happened? A: Well, I guess it was pretty fiery. As I say The Assistant Commissioner was about three hours late and he came in and I guess I'd say he was fairly angry, or aggressive I guess, and proceeded to tell people one by one, you know, whether they could speak or – I mean I was there and he told me to shut up and stay out of it. Well, I really mean the thing I remember most is what he said to the Complainant. ….. Witness: Well, he said 'and you can go get fucked and if you don't like it you can go get out of here', or something like that. Mr Ramage's evidence 33 Witness: When Mr Woodham arrived he went to the toilet and then he came out to the conference room. Q: And what happened then? A: There were a number of us as I recall sitting around the conference room. I think some general discussion took place and through the course of events the discussion became heated with which I said to Mr Woodham that he could take his job and shove it up his fucking arse. Q: Who said? A: I said that to Mr Woodham. Mr Woodham's evidence 34 In his statement dated 29 January 1998, Mr Woodham said: I deny that I said 'You can get fucked and if you don't like working here I will get rid of you." Whilst I can no longer remember the exact words I used at that time, I do remember that I said words to the effect "If you don't like working here you can work somewhere else." 35 In a later statement dated 13 July 1998, Mr Woodham states: As I indicated in my statement of 29 January, 1998, I no longer remember the exact words that I used at that time but I do remember that I said words to the effect "If you don't like working here you can work somewhere else. It is quite possible in making that statement I used the word "fucking". However, any suggestion that my statement to Mr Aldridge was a threat to dismiss him from his employment is entirely without foundation. Conclusions 36 We found in our first decision that it was open for the Tribunal to conclude that Mr Woodham said to Mr Aldridge at the August meeting words to the effect of "If you do not like working here you can get fucked and go somewhere else." The preponderance of the evidence supports such a finding. It essentially accords with the evidence of Mr Mulvany and Ms Sutherland. Mr Ramage did not recall this statement. While Mr Woodham was rather slow to acknowledge that he used the word "fucked" or "fucking", this finding is also consistent with his evidence. Mr Aldridge's evidence was that Mr Woodham said "basically you can get fucked and if you don't like working her I can get rid of you easily." This recollection of the statement, which appears to imply a threat of dismissal or transfer, is not supported by any other witness. We conclude that what Mr Woodham said to Mr Aldridge may be cast as a "take it or leave proposition", laced with some crude language. The content and tone of the comment was abusive. The evidence leads us to conclude that Mr Woodham behaved in an angry and aggressive manner towards several people at the meeting. Mr Mulvaney gave evidence that there was a "tremendous amount of aggression towards the people in that room." That observation is corroborated by the evidence of the other participants. Mr Aldridge himself said in his statement that historically, Mr Woodham had been aggressive in his attitude to him and other staff of the Aboriginal Resource Unit. Some other people, such as Mr Ramage, were also aggressive. Mr Woodham directed abusive and peremptory comments to several people, of both Aboriginal and non-Aboriginal background. For example, when Mr Mulvaney (a non-Aboriginal person) raised concerns about the implementation of a policy whereby family members could visit Aboriginal prisoners in court or police cells, Mr Woodham again became aggressive and said, 'Well, you're not even Aboriginal." He told Ms Sutherland, a non-Aboriginal person, to "shut-up". Elements of direct race discrimination 37 Introduction. As we noted in our first decision, at [71] there are several cases in which racially based abuse has been held to constitute unlawful discrimination. (See, for example Ardeshirian v Robe River Iron Associates (1990) EOC 92-299; Metwally v University of Wollongong (1984) EOC 92-030; Rugema v Gadsten Pty Ltd t/a Southcorp Packaging (1997) EOC 92-887.) There is no suggestion in this case that Mr Aldridge was the victim of racially based abuse; what is suggested, however is that Mr Aldridge was abused because of his race. Abuse of an employee by an employer, even if it has no racial content, can constitute a "detriment" within the meaning of s 8(2)(c) and it can amount to unlawful discrimination on the ground of race if the employee is treated less favourably than other employees in the same or similar circumstances and a reason or ground for that treatment is the employee's race. As we have already indicated, the evidence leads to the inescapable conclusion that Mr Aldridge was abused and bullied by Mr Woodham at the August meeting. This abuse and bullying constituted a detriment within the meaning of s 8(2)(c) of the AD Act. Mr Aldridge was entitled to carry out his work for the Commissioner free from abuse and bullying from his superiors, such as the Assistant Commissioner. It is necessary to determine, however, whether this abuse and bullying amounted to discrimination on the ground of race. 38 In our decision of 18 April 2000 we stated that, in relation to the complaint of discrimination on the ground of race, two issues needed to be addressed. Those issues are: Whether the Complainant was treated less favourably than a non-Aboriginal person would have been treated in circumstances that are the same or not materially different (the comparison issue); If so, whether that less favourable treatment was on ground of the race of the Complainant (the causation issue). 39 Differential treatment . As we also said in that earlier decision, differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. For differential treatment to have occurred in this case, the treatment of Mr Aldridge must have been objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same or similar circumstances. 40 The comparison in this case must be between Mr Aldridge, an Aboriginal person, and another real or hypothetical person who is not Aboriginal. Ms Eastman for the complainant submitted that the manner in which other people were treated at the meeting was "a same or similar circumstance." In her view, it is not appropriate to compare the way in which Mr Woodham treated employees outside the context of the meeting because this does not constitute the same circumstances or circumstances which are not materially different. We agree with this submission. There were non-Aboriginal people at the meeting who were members of the Aboriginal Resource Unit, advocating in favour of policies supporting Aboriginal inmates and employees. In these circumstances, there is no need for a hypothetical comparator. Mr Woodham's treatment of Mr Aldridge can be compared with his treatment of the other employees of the Commissioner who were present at the August meeting. 41 Ms Eastman for Mr Aldridge, said that the other people at the meeting were not treated in the same way as Mr Woodham treated Mr Aldridge. Mr Woodham did not swear at Colleen Sutherland, a non-Aboriginal employee, or subject her to the same kind of humiliation. Ms Eastman submitted that Mr Woodham's treatment of Mr Mulvaney, a non-Aboriginal employee, demonstrates that he distinguished in his interactions between Aboriginal and non-Aboriginal employees. Ms Eastman is clearly referring to Mr Woodham's comment to Mr Mulvaney that, "Well, you're not even Aboriginal." 42 We do not agree with Ms Eastman's characterisation of Mr Woodham's treatment of the people at the meeting. We have concluded that Mr Woodham behaved in an angry and aggressive manner towards several people at the meeting. While we have concluded that he abused Mr Aldridge, and that Mr Aldridge suffered detriment as a result of that abuse, Mr Woodham did not treat Mr Aldridge less favourably than he treated non-Aboriginal people at the meeting. When Mr Mulvaney was advocating for the rights of Aboriginal prisoners to receive family visits when in court or police cells, Mr Woodham became aggressive and said, "Well, you're not even Aboriginal." Mr Woodham would not allow Mr Mulvaney to pursue this issue with him. Mr Woodham also told Ms Sutherland, a non-Aboriginal person, to "shut-up". While Mr Woodham was abusive and aggressive towards a number of people in the room, he allowed Mr Aldridge to speak. We are not persuaded that Mr Aldridge was singled out and treated differently from others at the meeting. 43 The Tribunal made reference to the opinion of Mr Mulvaney that the abuse directed to Mr Aldridge by Mr Woodham was racially motivated and that Mr Aldridge was singled out by Mr Woodham. While it is permissible in a Tribunal not bound by the rules of evidence to accept such evidence, Mr Mulvaney's opinion is not proof of a fact in issue unless there is evidence of occurrences which lead to the formation of that opinion. None was lead. The former Equal Opportunity Tribunal's decision in Hill v University of New England (1990) EOC 92-291 is often cited as authority for the proposition that a person's suspicion or belief about the reasons for another person's behaviour should not be "escalated impermissibly to the level of proof." Thus, it is our conclusion that Mr Aldridge was not treated less favourably than non-Aboriginal people by Mr Woodham at the August meeting. 44 Given our conclusion that there was no "less favourable treatment" it is not necessary for us to consider the issue of causation. Mr Aldridge's complaint of discrimination on the ground of race is not substantiated. Accordingly, it must be dismissed. Victimisation 45 In our first decision of 18 April 2000, we made the following observations about the complaint of victimisation at [8] to [10]: The Tribunal did not make any final order in relation to the complaint of victimisation. In his Points of Claim, Mr Aldridge alleged that he was victimised because he wrote a report to the Commissioner complaining of racial discrimination against three Aboriginal inmates. Mr Aldridge gave evidence about his allegations of victimisation at the hearing. (See for example, transcript of 6 April 1998 at p 26.) In final submissions to the Tribunal, Mr Aldridge's counsel alleged that "The complainant was also victimised as a result of his report of 22 December 1993 into the removal of Messrs Glass, Pitt and Kirby." The Department addressed the issue of victimisation in its written submissions at paragraphs 12 and 38. The Tribunal quoted section 50 of the Act (the section relating to victimisation) at the beginning of the decision, but there is no further mention of this complaint in the decision. Neither of the parties raised the issue of the victimisation complaint before the Appeal Panel. In these circumstances it is not appropriate for us to make orders in relation to the victimisation complaint at this stage. However, as we have decided to extend this appeal to the merits of one part of Mr Aldridge's race discrimination complaint, this hearing will provide the parties with an appropriate opportunity to make submissions to the Tribunal on this issue. 46 Ms Eastman submitted that we had extended the appeal to the merits of the victimisation complaint. No such order was made. Our order in relation to victimisation was as follows: The parties be afforded the opportunity to make submissions to this Appeal Panel concerning the final orders (if any) which should be made in relation to the complaint of victimisation. 47 Mr Menzies submitted that we should make no order in relation to the victimisation complaint. Mr Aldridge had not appealed against the Tribunal's failure to make findings or orders in relation to victimisation. In the absence of such an appeal, the Appeal Panel did not have jurisdiction to make any orders in relation to that complaint. Reasons and decision 48 We accept the Commissioner's submission on this matter. We do not have jurisdiction to make any orders in relation to that complaint. While the failure of the Tribunal at first instance to make any findings or orders in relation to that complaint is regrettable, the only way in which that oversight could have been remedied was for Mr Aldridge to have appealed against that aspect of the decision. He did not do so and consequently, it is simply too late to ask the Appeal Panel to make any orders in relation to the victimisation complaint. Orders The complaint of discrimination on the ground of race is dismissed. 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.