Farmer -v- Jan James Recruiting Pty Ltd [2002] NSWADT 82

CITATION: Farmer -v- Jan James Recruiting Pty Ltd [2002] NSWADT 82 revised - 23/05/2002 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Sarah Farmer RESPONDENT Jan James Recruiting Pty Ltd FILE NUMBER: 001031 HEARING DATES: 04 & 05/07/2001, 28/08/2001, 11 & 12/10/2001, 14/03/2002 SUBMISSIONS CLOSED: 03/14/2002 DATE OF DECISION: 05/17/2002

BEFORE: Ireland G - Judicial Member; Mooney L - Member; Nemeth de Bikal L - Member APPLICATION: Transgender - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT E Haggerty, solicitor ORDERS: 1. Complaint dismissed; 2. No order as to costs.

BACKGROUND 1 This inquiry by the Tribunal relates to two complaints lodged by the Applicant with the Anti-Discrimination Board ("the Board") on 8 January 1998 and on 24 July 1998. On 9 May 2000, the Board referred the complaints for inquiry by the Tribunal, pursuant to Section 94(1) of the Anti-Discrimination Act 1997 ("the Act"). 2 The first complaint relates to the treatment received by the Applicant between 8 August 1997 and 8 January 1998, after she applied to the Respondent to be placed by the Respondent into temporary positions with clients of the Respondent who were seeking persons to fill positions dealing with credit control and credit collection. 3 The second complaint alleges that the Respondent unfavourably treated the Applicant in the manner in which the Respondent dealt with the Applicant in her attempts to have the Respondent place her into temporary positions, between 8 January 1998 and 24 July 1998. 4 The Respondent conducted a recruitment agency business, which specialised in the placement of applicants on a temporary basis and on a permanent basis with clients in credit control and credit collection positions. 5 In its Points of Defence, the Respondent concedes that it is an employment agency within the definition in Section 4(1) of the Act, although, by virtue of submissions made to the Tribunal by Counsel for the Respondent, the Tribunal has understood that the concessions extend only to qualify the Respondent as an employment agency in relation to the provision of services for supplying employers with workers or employees. Although the submission was not directed specifically to the application of the definition to the Respondent, the submission, which is dealt with later in this decision, impliedly does not concede that the Respondent was an employment agency which provided services for the purpose of finding work or employment for others. 6 During the periods covered by the two complaints, the Applicant was a transgender person within the meaning of Section 38A(a) of the Act. In its Points of Defence, the Respondent concedes the transgender status of the Applicant. 7 The Applicant alleges that the Respondent directly discriminated against her in terms of Section 38B(1)(a) of the Act, in the manner in which the Respondent dealt with her applications for employment during the periods of the complaint, and that the discrimination was on the ground of her being a transgender person. It is further alleged that the discrimination was unlawful, in breach of Sections 38J(a) and (b) of the Act. RELEVANT PROVISIONS OF THE ACT 8 For the purposes of the inquiry into the complaints of the Applicant, the following are the applicable provisions of the Act: Section 4(1): " employment agency means a person who, for profit for not, provides services for the purpose of finding work for employment for others or for supplying employers with workers or employees." Section 38A Interpretation: "A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person: (a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being though of as a transgender person, whether the person is, or was, in fact a transgender person." Section 38B What Constitutes discrimination on transgender grounds: "(1) a person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, 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 who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or " "(2)For the purposes of subsection (1)(a), something is done on the ground of a person being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender person or a characteristic that is generally imputed to transgender persons." Section 38J Employment Agencies: It is unlawful for an employment agency to discriminate against a person on transgender grounds: (a) by refusing to provide the person with any of its services, or (b) in the terms on which it offers to provide the person with any of its services." TRANSGENDER STATUS OF APPLICANT 9 Although the Respondent concedes the transgender status of the Applicant during the periods covered by the complaints, the Tribunal has had regard to the circumstances of the changes in the physical and psychological condition of the Applicant prior to and during that period. Relevant background to the condition of the Applicant which has been considered by the Tribunal is set out in the following paragraph. 10 The Applicant stated that she was born a male and started living as a female in late July 1997. She is presently aged 44 years. She became conscious that she had female tendencies at the age of 13. She first gave consideration to making the change from male to female about 10 years prior to the actions that she took in July 1997. At that time she was aged 40 and she started a course of hormone treatment. In December 1996, she started wearing non-descript clothing, that is, clothes bought from the female section of stores but clothes that did not present as obviously female in their appearance. She did not wear make-up but at that time continued to use her male name. Her last employment as a male was with Seres Australia in May 1997 where she was employed part-time as a credit controller. She left that position in June 1997 after an argument about her hours of attendance. She then attempted to get work both as a male and a female. 11 The Applicant finally decided to make the change to a female after her landlord noticed that she was dressed as a female. This was in July 1997. She decided then to live permanently as a female and she told her landlord of this decision. At that time she told all her friends what she was doing and told them that she would not see them for two years during the change as she felt she would be totally a different person and that her friends needed time to get used to it. She has slowly renewed contact with her friends and she has now become used to her new image. During the period of changes she had no contact with the Respondent but in August 1994 Ms Jane Reeves, who was then employed by another recruitment agency, Kyle Management Services, became aware of the Applicant. CIRCUMSTANCES OF THE COMPLAINTS 12 Ms Jan Reeves (Reeves) is a Director of the Respondent Company and controlled its operations. Reeves was formerly known as Jan James and has more recently used the name Jan Reeves. 13 The Applicant first had contact with Reeves in 1994 when she was known as Jan James. At that time Reeves was employed by Dorena Pty Limited, trading as Kyle Management Resources, a company which conducted a similar business to the business conducted by the Respondent. Between 1994 and 7th August 1997, Reeves left the employ of Dorena Pty Limited and established the business now conducted by the Respondent. 14 In 1994, the Applicant had not became a transgender person and presented as a male. He had been placed by Kyle Management Services to a credit control position with Australia Post. Due to what the Applicant describes as a breach of protocol, that appointment was terminated by Australia Post after only one week. At that time, Reeves had been appointed in charge of the credit division of Kyle Management Resources, and in that capacity she overheard a heated conversation between the principal of Kyle Management Services and the Applicant in which the principal told the Applicant that he did not trust him to put him forward for jobs as he would lose the job. Soon after this incident, the Applicant contacted Reeves in response to an advertisement placed by Reeves, and in that conversation the Applicant referred Reeves to the principal for details of his work history and then Reeves said: "The Applicant abruptly hung up the phone without any of the customary salutations." 15 When she inquired of the principal, he told Reeves that he considered the Applicant to be unreliable. "He has behaved aggressively towards a client of ours. He looses it." 16 Reeves then telephoned the Applicant and advised him that he was not a suitable candidate for the position, which required a more experienced and qualified candidate. Reeves stated that the Applicant replied: "Yeah, you're all a bunch of toss pots. Ron (the principal), told you what happened before and he's not going to place me anymore." 17 Reeves stated that the Applicant again abruptly hung up without the customary salutations. 18 In June or July 1995, the Applicant again phoned Reeves and asked why he had not been put forward for jobs. When Reeves told the Applicant that the positions were not suitable for him and explained the reasons for that view, she told him that she would call him if something came up that was suitable, the Applicant again hung up the telephone without the customary salutations. Reeves did not hear further from the Applicant until 8 August 1997. At that time Reeves had established her own business, operating as the Respondent company. 19 On 6 August 1997, the Respondent had placed an advertisement for a position for which the Applicant considered she was qualified. At that time, the Applicant had become a transgender person and had adopted the name "Sarah Farmer". On Friday 8 August 1997 the Applicant phoned the office of the Respondent and spoke to the receptionist and gave her name as Sarah Farmer and said that she was known to Reeves. Reeves was unavailable and returned the call on Monday 11 August 1997. Reeves and the Applicant gave distinctly different versions of the contents of that telephone conversation, so far as it is relevant to this inquiry. 20 Reeves stated that she was not familiar with the name Sarah Farmer but connected her to her former male name after the Applicant told her that she had had contact with Reeves at Kyle Management Resources. Reeves stated that after she asked: "How are you?" The Applicant responded: "Miserable" and then said that she needed a job and that she was not able to get a job. Reeves then asked: "What have you been doing since I last spoke to you?" The Applicant responded: "I have had my dick chopped off and I have a vagina." Reeves stated that she responded: "Oh. Sounds like you have had a challenging time. How are you now?" The Applicant said: "How do you think I am?" Reeves said: "I don't know. I was just asking how you were." The Applicant responded: "I haven't got a job and I haven't got any money." Reeves said: "I can't exactly recall your background can you let me have an updated copy of your resume?" The Applicant said that she would fax one to Reeves. 21 Reeves stated that during that conversation the Applicant was not specific about which position she was interested in but she stated the Applicant's manner was very aggressive. Reeves also stated that after that conversation she formed a tentative view that the Applicant might well be an unsuitable employee to place with a client of her company because of her aggressive and violent words and the graphic description of her personal life in a way which Reeves considered was inappropriate, and that the Applicant had not provided objective information about her professional life nor of her current work experience in credit or collections. 22 In considering the evidence of the Applicant, the Tribunal has had regard to the fact that the Applicant was not represented at the Hearing and as a consequence had difficulty in assimilating her evidence and supporting material. In her evidence to the Tribunal, in which the Applicant related the telephone conversation with Reeves on 11 August 1997, she said merely that she explained to Reeves that she was changing her sex and that she was no longer a male and that she was dressing as a female. Subsequently, the Applicant denied that she said the words related by Reeves, "I've had my dick chopped off and I have got a vagina." And the Applicant denied that she was aggressive during her conversation. 23 She stated that she had told Reeves that she had last worked in a credit position six weeks ago and told her of her position with Seres Australia and that she had left that position after an argument about her hours of work. 24 Later, in her cross-examination of Reeves, the following exchange took place between the Applicant and Reeves: "Q. OK. So bearing that in mind, is it quite possible that instead of saying 'I have had my dick chopped off and I have got a vagina', at some stage in the conversation all I actually said was 'I haven't had it chopped off yet but one day maybe?'" A. "What is actually in my statement is what I recall." 25 Reeves stated that she found the use of the phrase 'I've had my dick chopped off and I've got a vagina' as the use of aggressive and violent words. She stated that they were not the only aggressive part of the conversation. She stated that she found a lot of the conversation to be aggressive and that it was not particularly the words used but the whole conversation had an aggressive tone. 26 The Applicant said that in the conversation with Reeves she pointed out to her that the Applicant's experience in credit control fitted exactly with the job advertised in the advertisement on 6 August 1997. The Applicant stated that Reeves responded that the client wanted a person experienced in the operations of a finance company and that did not meet the experience of the Applicant. 27 The Applicant described further advertisements for jobs for which she stated that she was qualified which were inserted in newspapers by the Respondent on 19 August 1997, 25 August 1997, 25 December 1997, 8 January 1998 and to 5 positions advertised with the same client that were advertised on 21 July 1998. Each of these positions was for a temporary appointment. The Applicant stated that she received no contact from Reeves in relation to any of these positions. In relation to each position, the Applicant stated that she phoned the Respondent company and spoke either to Reeves or to employees of the Respondent company, Brendan Clarke and Margaret Irish. The Applicant said that on most occasions Mr Clarke did not respond to her calls and that Reeves ultimately told the Applicant that she should talk to her. Both Mr Clarke and Ms Irish dealt with temporary appointments on behalf of the Respondent. The Applicant said he spoke on two occasions to Ms Irish and on those occasions Ms Irish told the Applicant that she was not suitable for the position. 28 Following the telephone conversation with Reeves on 11 July 1997, the Applicant sent by fax a letter to Reeves enclosing a copy of her resume. Reeves stated that the contents of the letter and the resume confirmed her tentative view, 'that the Applicant would probably be unsuitable to place in employment with any client company and concluded that it was unlikely that any of our client companies would find her either suitably qualified by way of recent work experience or possessing the appropriate interpersonal skills to be able to fit into their business.' 29 Reeves explained that it was important, in her view, that in referring Applicants to clients that the Agency be satisfied that the Applicant would not cause disturbance or disruption to other staff of the client. 30 On 12 August 1997 Reeves phoned the Applicant and told her that the Respondent was a specialist in placing well qualified and experienced candidates with continuity of work experience in credit control and collections and pointed out to the Respondent that there were 'big and unexplained gaps in your resume'. Reeves suggested to the Applicant that a large generalist recruiter would be in a much better position to help her. She stated that she told the Applicant that she would a call her if something came up, which she thought would suit her. She said that the Applicant said: "That's what everyone says." And that the Applicant abruptly hung up the phone without any of the customary salutations. 31 The Applicant stated that on 25 August 1997 she phoned Reeves concerning the advertisement for a job at Mascot and when Reeves phoned the Applicant on 26 August 1997 she told the Applicant that the position had been filled and that the Applicant responded: "You always say that." 32 Reeves stated that she then said: "That is all I can say. I know your background and as soon as I get …." And the Applicant interrupted and said: "Yeah right." And abruptly hung up the phone without any of the customary salutations. 33 Later that day Reeves received a fax from the Applicant. A copy of that fax was provided to the Tribunal. The contents of the fax discloses that the Applicant was upset by the statement by Reeves 'I know your background.' After referring to that statement, the Applicant stated in the fax: "If you know my background then you also know that I am more than capable of carrying out the assignment that was advertised. You might think that you know my background that there are a lot of factors that may be you don't know about and I am now going to fill you in on, because until you know about them you CANNOT know my background." The fax then sets out at length, an historical description of the adverse experiences suffered by the Applicant since her childhood.The fax letter concludes with the following statement: "But I think this should help you to realise that about my background you know NOTHING !. About my future though I will not be made to pay for mistakes in the past caused by the above. I will also not be discriminated against because of the current changes that are happening to me. I may not be the best there is, but one thing I have always known, I am a damn sight better than the majority." 34 Reeves stated that the facsimile letter further confirmed her view that the Applicant's lack of inter-personal skills would make it very hard indeed for her to fit into the business of any client company. She stated that she advised the company's receptionists not to refer calls from the Applicant to any of the recruitment consultants in the company but to refer future calls to her. 35 In late September 1997, Reeves described that a client company made a special request to recruit a temporary employee for a one week assignment to pack and move boxes of documents. Reeves stated that as the position did not require current credit or collection experience and was short term and as the Applicant had some experience in removals, one of the Respondent's recruitment consultants suggested to Reeves that the Applicant be recommended for the position. After discussing the suggestion at a meeting of recruitment consultants, it was concluded that in view of the Applicant's display of aggression and the recent fax letter, that the Respondent would not be able to recommend the Applicant to the client. 36 On 15 December 1997 Ms Irish advised Reeves that the Applicant had phoned her and stated that the reason the Respondent was not putting her forward for temporary positions was because she was a transsexual and that she had hired people to send applications to the Respondent with the same experience as the Applicant and that if the Respondent phoned those persons and not the Applicant, that the Applicant would refer the matter to the Equal Opportunity Commission. The Applicant further stated that if the Respondent did not find her a job by the end of the week she would lodge a complaint with the "Equal Opportunity Commission". 37 The Respondent advertised a position of a Senior Credit Controller on 5 occasions commencing on 22 December 1997. On 22 December 1997 Ms Irish advised Reeves that she had had a telephone call from the Applicant who sounded very angry because she had not been put forward for the position in the advertisement and that she was referring the matter to the Equal Opportunity Commission. 38 On 24 February 1998 Mr Clark told Reeves that the Applicant had phoned him and stated that if she did not get the next job she would stand outside the office and hand out pamphlets and ruin the business. She also told Mr Clark that she had filed complaints with various organizations and that she can get very angry at times and will turn up at the Respondent's office day after day until something happens. 39 The Senior Credit Control position had to be re-advertised on 5 May 1998. Ms Irish told Reeves that the Applicant had sent a fax to the Respondent applying for the position and that Ms Irish had tried unsuccessfully on several occasions to contact the Applicant by phone. On 12 May Ms Irish advised Reeves that the Applicant had phoned her and following a discussion about the unsuitability of the Applicant for the position, the Applicant had told Ms Irish that she was to fax through an updated resume. On 18 May 1998 Ms Irish told Reeves that she had advised the Applicant that she did not have the right background for the position and that the position had now been filled. 40 Reeves stated that on 19 June 1998 she decided to interview the Applicant because she was feeling pressured by the Applicant's threats. Reeves related the content of her conversation with the Applicant at the interview in which the Applicant stated that for the last nine months she had been doing IT work and that she had been 'working on a web site for people who like S & M.' Reeves stated that she explained to the Applicant the difficulties in recommending the Applicant as she did not have recent work experience in credit control and that her work history was sketchy and unsubstantiated. Reeves restated what she had told the Applicant that a generalist recruiter would be in a better position to find her a job. She told the Applicant that if the Respondent got a position in the future which it was thought might suit the Applicant, Reeves would phone her. The Applicant stated that she would send an updated copy of her resume, which was received on 30 June 1998. This resume was the same as the original resume faxed to the Respondent on 11 August 1997. Reeves stated that the update did not remove the problems in the original resume and Reeves stated that she considered it was unlikely any job would come up for which she could properly recommend the Applicant in preference to other employees. 41 On 21 July 1998, the Respondent advertised five temporary positions with a client. Two of those positions related to credit control work and one position related to credit recoveries. The Applicant phoned Reeves on 22 July 1998 in response to the advertisements. Reeves returned the call on 23 July 1998. Reeves pointed out to the Applicant that the client sought recent credit or collection experience and that during the last seven years the Applicant's resume showed that she had only worked in credit control for approximately 22 months. Reeves undertook to check all positions that were then available through the Respondent and that if there was a job that suited the Applicant she would call her. Reeves was unable to find a position suitable for the Applicant and that day she phoned the Applicant to advise her but there was no reply to the telephone call. The Applicant phoned back to Reeves on 28 July 1998 and Reeves responded on 29 July 1998 and after several calls contacted the Applicant and told her that all the positions that the Respondent was working on at the time required either finance or collections experience or high volume retail experience. The Applicant responded: "There is always a reason why these positions aren't suitable." 42 The Applicant lodged her second complaint with the Board on 24 July 1998. In that complaint the Applicant emphasised the lack of response by the Respondent to her application for the positions advertised on 21 July 1998. 43 On 3 August 1998, the Applicant send a facsimile transmission to the Respondent which set out a copy of an e-mail which the Applicant had sent that day to the principal of Kyle Management Resources. A copy of that fax transmission was tendered to the Tribunal. The fax message to the Respondent states: "Below is a copy of a fax I have just sent to Ron Foley. I want you to see that I am deadly serious in the allegations that I make about him to you. I also want you to know that as I have said before, he is the focus of my intended actions and the only other people that have anything to worry about are those that hatched the scheme. I do not have conclusive proof who they are, but I do have strong suspicions." The message then sets out the contents of the facsimile that the Applicant had that day dispatched to Mr Foley, the principal of Kyle Management Services. The message commences: "Coward Liar and Cheat" It then makes a number of allegations of a flamboyant nature and contains threats, "As a result, today I officially claim your life as payment of the ..... and it will be met …. You may arrange a suitable location for the trial and inform me via mail as I will no longer talk to you over the phone. Arms are permitted by arrangement and may be longbow, recurve, dagger and/or sword. Any other weapon will be considered a breach and an admittance of guilt. Myself, I am proficient only in the bow, long and recurve, but I have right on my side. If you or your agent appear at my house I will avenge myself without further warning." 44 Reeves stated that she was horrified by the threat to take Mr Foley's life, frightened for Mr Foley's safety and also frightened that the next step might possibly involve more threats or danger to her staff or to herself. 45 The following day Reeves phoned the Applicant and referred to the fax message which she described as: "An awful fax you sent to Ron Foley and it is certainly quite inappropriate to send a copy of it to me." The Applicant replied: "I haven't got anything against you. I am holding Ron responsible." 46 Finally, Reeves related to a temporary position that became available in October 1998. There was some uncertainty whether the date of this incident was in May 1988 but the Tribunal considers that it is more likely to have occurred as stated by Reeves in October 1998. The position was a temporary position for a short-term collections and related clerical position. Reeves knew that the client was particularly tolerant of employees who have unusual personalities. She also stated that she felt pressured and threatened by the Applicant. As the job was temporary and short term and the Applicant was unemployed and had no money, she felt some sympathy for the Applicant and decided, with some hesitation, to put the Applicant's name forward for the position. Reeves stated that she phoned the Applicant and advised her that she was intending to recommend her for the position. The Applicant stated that she was going out and would get back to Reeves on the following day. When Reeves had not heard from the Applicant on the following day she left a message for the Applicant to return her call. Later that day the Applicant phoned and Reeves stated her recollection of the following conversation: "I said: 'Oh, Hi Sarah I have been trying to get hold of you regarding the position I mentioned to you yesterday.' The Applicant said: 'I am standing on a chair in the bathroom with the electricity cord around my neck. I am about to hang myself.' When the Applicant said this, she made an hysterical laugh. I said: 'Oh. OK. The position I mentioned to you yesterday looks as if it has been filled. I will give you a call if anything else comes in that I think will suit you." 47 Reeves stated that her statement that the position had been filled, was false and she said it in order to end the conversation which she found distressing. Reeves stated further that on the same day she advised the client that she had withdrawn the recommendation because the prospective employee had threatened to hang herself and would not be suitable for the client's business. Reeves further stated that she then made a firm decision that the Applicant was unsuitable for any position within the business of the Respondent and that it would be unprofessional to recommend the Respondent to appointment with any client. 48 Reeves also related to subsequent contacts between the Applicant and the Respondent. The Tribunal has not had regard to these subsequent contacts as they are outside the period covered by the two complaints. In considering the matters that occurred on 3 August 1998 and in October 1998, although those incidents are outside the period covered by the Complaints, the Tribunal considers that it is appropriate to have regard to the incidents as illustrative of the aggressive attitude of the Applicant towards those to whom she was seeking help in finding employment for her. EXAMINATION OF COMPLAINANT'S ALLEGATIONS 49 Having regard to the period covered by the two complaints lodged with the Board; the statements of the allegations set out in the Points of Claim filed by the Applicant; and the evidence and material presented to the Tribunal, the Tribunal has formulated and then examined the claims of the Applicant that the Respondent directly discriminated against her. 50 The Applicant alleges that the Respondent, on the ground that the Applicant was a transgender person, treated the Applicant less favourably than the Respondent treated or would have treated a person who is not a transgender person, in the same or in similar circumstances which applied to the Applicant when making application to the Respondent for placement into temporary positions in credit control employment, in the following respects: (i) The Respondent did not put forward the Applicant's name or her resume to the employer clients of the Respondent for the positions in the advertisements published by the Respondent between 8 August 1997 and 21 July 1998, being the advertisements referred to earlier in this decision; or for any other positions for which the Applicant was suitable during the period from 8 August 1997 to 21 July 1998; (ii) The Respondent did not offer to automatically refer the Applicant's name for positions for which she was suited, requiring her instead to call the Respondent and to indicate that the Applicant was interested in a position advertised by the Respondent; (iii) The Respondent did not contact the Applicant to see if she was available for work, or to interview her, prior to the 19 June 1998; (iv) The Respondent did not enter details of the Applicant's work experience into the Respondent's recruitment data base; (v) The Respondent did not conduct herself in a courteous and professional manner when dealing with the Applicant. 51 Reeves described the usual practice of the Respondent when dealing with persons applying to be placed into temporary and permanent positions with clients of the Respondent. She described five stages in the process, commencing with the contact by a client employer, the initial review of the Respondent's data base for previous interviewees whose work experience and skills might match the criteria of the client, and the subsequent telephone screening of prospective employees who respond by telephone to an advertisement placed by the Respondent. In the telephone screening process, the recruitment consultant makes an initial assessment of the qualifications of the applicant and, if appropriate, the recruitment consultant invites the prospective employee to the Respondent's premises for an interview. She stated that the company verbally advises the prospective employee if it is unable to assist him or her and refers that person to another agency. Of the prospective employees interviewed, only some are immediately recommended to client companies. The remaining prospective employees' names remain on the company's data base in case a suitable position becomes available. The Respondent generally has between 50 to 200 prospective employees on its books. At the interview, the Respondent usually requests the prospective employee to provide a copy of his or her curriculum vitae including names of referees. Finally, the recruitment consultant having formed the view as to the best applicants, advises the client employer of its recommendations for appointing a particular applicant. 52 The process adopted by the Respondent, as described by Reeves, for the placement of persons into temporary positions, was not followed by the Respondent in its dealings with the Applicant between 8 August 1997 and 21 July 1998. The Applicant was not called for an interview until, after persistence by the Applicant, Reeves invited the Applicant for an interview on 19 June 1998. Following the initial phone contact by the Applicant on 8 July 1998, the Applicant submitted a copy of her resume to the Respondent. The Responent did not enter the details of the resume or any other details of the Applicant onto the employment data base of the Respondent. 53 The Tribunal is satisfied that on 11 August 1997, Reeves formed the view that she would not refer the Applicant for placement with her clients. She formed that view based on her assessment that the Applicant did not demonstrate the necessary recent experience in credit control work, did not have a stable employment record and had an aggressive and difficult personality which would be disruptive to other staff and working environments in a client's business. The view of the Applicant's manner and personality, as assessed by Reeves, was based on her previous contact with the Applicant when she was a male at Kyle Management Resources in 1994, the Applicant's abrupt and aggressive manner in her telephone discussion on 11 August 1997 and in particular the manner in which she introduced herself and described to Reeves the present circumstances of her transgender condition. 54 Reeves described in graphic terms the description which the Applicant gave of her transgender condition on 11 August 1997. The Applicant denies that she described her condition in the terms related by Reeves. The differences in the versions of the conversation have been set out earlier in this decision. It was a fact that during the period covered by the complaints, the Applicant had not undergone surgery in relation to her condition. The Applicant's description of her condition to Reeves in that telephone discussion, as related by Reeves, was in fact not a correct description of her circumstances. The Tribunal has been invited by Counsel for the Respondent, to determine that the evidence of Reeves in this regard should be believed in preference to the more modified version of the conversation put forward by the Applicant. In the opinion of the Tribunal, it is more likely that the version of the conversation as related by Reeves is a more accurate recollection of the words used by the Applicant in her telephone discussion. In her evidence to the Tribunal, the Applicant used general words to describe how she related her condition to Reeves on that occasion. However, in her cross examination of Reeves on this aspect, the Applicant put to Reeves a more specific version of what she had said, albeit in terms less provocative, than the description related by Reeves. Whichever version of the conversation is correct, it is clear to the Tribunal that the tenor of the description of her condition which the Applicant related to Reeves was provocative and inappropriate and justified Reeves in being cautious about referring the Applicant to the Respondent's clients for employment. 55 The justification for the cautious approach adopted by Reeves, evolved further in subsequent telephone discussions with the Applicant. On almost each occasion where Reeves had a conversation with the Applicant, the Applicant adopted an aggressive and impolite style which was not conducive to influencing an employment agent to recommend the Applicant for employment. The nature of the contents of the fax sent by the Applicant to Reeves on 26 August 1997 in which the Applicant outlined her background in the most graphic description, was further support to Reeves in her decision not to refer the Applicant for employment. Later confirmation of a justification for this decision arose from the nature of the fax sent by the Applicant to Reeves on 3 August 1998, and still later in October 1998 when in relation to the reference of the Applicant to a placement, the Applicant told Reeves that she had just tried to hang herself. 56 In addition to Reeves' assessment of the personality of the Applicant, Reeves also considered that the Applicant lacked the necessary recent experience and stable employment history, to justify referring the Applicant for positions. The Applicant sought to establish that the assessment by Reeves of her work experience and employment history was not justified. A considerable number of invoices sent by the Respondent to client employers for placement of temporary staff during the period covered by the complaint, were produced by the Respondent. The Applicant nominated a large proportion of these invoices as indicative of appointments to positions for which the Applicant was qualified. Reeves responded to each of those invoices and demonstrated, with the exception of six examples, that the persons appointed to the positions were more experienced or more qualified that the Applicant. 57 In the case of the six exceptions, it is the view of the Tribunal that the work history and experience of those six applicants were equal to or less appropriate than the experience of the Applicant. Although Reeves gave explanations as to why those six persons were better suited for placement than the Applicant, the Tribunal does not find the explanations of suitability based on experience or job stability as convincing and regards the preference of those applicants over the Applicant for the positions, based on experience or job history, as not justified. 58 Support for the view taken by Reeves that the Applicant was unsuitable for recommendation for employment by clients of the Respondent was obtained from two witnesses. The Credit Manager of Taubmans at the time when the Respondent recommended the Applicant for a temporary position in the credit department, in October 1998, stated that she was advised that the Respondent had withdrawn its recommendation for the appointment of the Applicant following Reeves' telephone conversation with the Applicant in which the Applicant stated that she had just tried to commit suicide. She confirmed that she would not have accepted the Applicant with knowledge of the Applicant's attempted suicide. She stated that the Respondent had advised her that the Applicant was a transgender person who had a difficult personality and she stated that she was prepared to accept the Applicant in a temporary placement with knowledge of her circumstances. She stated that the environment in the credit department of Taubmans would have been able to cope with a transgender person but she was not prepared to submit her staff to the unstable personality reflected by the Applicant's attempt to commit suicide. She was influenced in her attitude to the Applicant by a recent death of a staff member of the credit department. 59 The second witness was the former credit manager of Dunlop Slazenger, a company with which the Applicant was employed between March 1995 and August 1995. The witness had supplied a favourable reference to the Applicant in respect to that period of employment. The witness confirmed the Applicant's position was to fill a temporary position in a credit collection role and it was not necessary for an applicant to have worked in credit collection during the preceding 12 months. In cross examination, when shown a copy of the fax sent by the Applicant to Reeves on 26 August 1997 and a copy of the fax sent to Reeves by the Applicant on 3 August 1998 the witness said that based on his 30 years experience as the manager of a credit department of a large business, he would not expect a recruitment agency to put forward a person if they knew of the background described in the fax of 26th July 1997, nor to recommend a person who had sent the fax dated 3rd August 1998. He said that he would regard the person who had sent the fax as not a suitable candidate for a position within an office environment. FINDINGS OF THE TRIBUNAL 60 After considering the background to the two complaints of the Applicant and after consideration of the evidence and material submitted to the Tribunal: (i) The Tribunal is satisfied that the Respondent treated the Applicant, a transgender person, less favourably than the Respondent would have treated in the same or similar circumstances to those applicable to the Applicant in applying to the Respondent's recruitment agency to be placed with a client of the Respondent, than a person who was not a transgender person. In coming to this conclusions, it is the view of the Tribunal that had the Respondent treated the Applicant's application for employment in the same manner that it treated applications by other applicants and had the Respondent fully and properly examined the Applicant's work background, her experience in credit collection work and her employment history and had the Respondent interviewed the Applicant in relation to these matters, the Applicant was able to demonstrat that, on those aspects, she was suitable for recommendation for appointment to a temporary position with a client of the Respondent. The Applicant's work history and experience was at least comparable to six of the applicants who the Respondent had recommended for appointment with clients. In other examples the differences between the work experience and employment history of the Applicant and other persons who had been placed by the Respondent, did not demonstrate a sufficient distinction to justify the Respondent assessing the unsuitability of the Applicant without interviewing and thoroughly considering the Applicant's background. (ii) The Tribunal is not satisfied that the Applicant has substantiated that the less favourable treatment of the Applicant by the Respondent, was on the ground that the Applicant was a transgender person. In the view of the Tribunal, Reeves, the Director of the Respondent, formed a view during the telephone conversation with the Applicant on 11 August 1997 that she was not able to refer the Applicant for appointment with a client. Reeves maintained that opinion during the period covered by the two complaints and she applied that opinion on each of the instances of job applications for which the Applicant contacted her or one of her consultants during that period. The Tribunal is satisfied that in coming to her opinion, Reeves was influenced by her assessment of the personality of the Applicant as a person whose provocative and aggressive attitude would be unsuitable for placement with a client of the Respondent. The Applicant's unimpressive experience and work history when combined with her opinion about the Applicant's attitude persuaded Reeves not to assist the Applicant to find a job through her agency. In the view of the Tribunal, the reasons for Reeves forming the adverse opinion of the Applicant and not to recommend the Applicant for a position were not based or causally connected with the Applicant being a transgender person. 61 Although it was not part of the presentation of the Applicant that sub-section (2) of section 38B of the Act could be applied to her circumstances, the Tribunal considered that it is appropriate that the Tribunal consider whether, under that sub-section, it could be established that the opinions formed by Reeves on which she based her unfavourable views of the Applicant's suitability for a job, was because of a characteristic of the Applicant that appertains to transgender persons or to a characteristic that is generally imputed to transgender persons. 62 The aggressive and provocative attitude of the Applicant throughout her contacts with Reeves and other consultants in the Respondent's agency, may be referable to a characteristic of a transgender person. The nature of the provocative statements of the Applicant and of the faxes that were sent by the Applicant to Reeves, may be indicative of an emotionally disturbed personality. The Applicant submitted copies of articles written by persons, some of whose qualifications were unclear, about the emotional impacts on persons going through transgender change. Those articles did not illustrate the manifestation of the emotional effects of a change in a transgender person, by for example, making provocative statements and adopting an aggressive attitude, especially towards persons whose assistance the transgender person seeks. To be able to categorise conduct of that nature to a transgender person would require more precise expert evidence than the generality of the articles tendered by the Applicant. 63 The Tribunal is unable, based on the evidence before it, to be satisfied that the adverse opinion of the Applicant that Reeves formed was based on a characteristic that appertains generally to transgender persons or a characteristic that generally is imputed to a transgender person. THE SERVICES OF THE RESPONDENT IN THE CONTEXT OF SECTION 38J 64 In view of the finding of the Tribunal under Section 38B(1)(a) of the Act that the Respondent did not discriminate against the Applicant as alleged in the two complaints of the Applicant, it is unnecessary to consider whether Section 38J of the Act applied to render the discrimination unlawful. As counsel for the Respondent made submissions at length concerning the application of section 38J to the circumstances of the Respondent, the Tribunal considers that it is appropriate to make some observations in relation to that submission. 65 On the evidence, the Tribunal would not confine the business of the Respondent as a recruitment agency to that part of the definition in section 4(1) of the Act of an employment agency, to the part of the Respondent's business that supplies employers with workers or employees. The Tribunal would find, if it was necessary to do so, that the Respondent's business also entails the provision of 'services for the purposes of finding work or employment for others' within the meaning of that phrase in the definition. 66 Once that conclusion is made the provisions of Sections 38J(a) and (b) would be available to the Applicant to establish that discrimination, had it occurred, was unlawful. 67 The evidence showed a distinction in the manner in which the Respondent treated the appointment of persons into temporary positions and into permanent positions. In the case of temporary positions, upon the client accepting an applicant, the applicant became an employee of the agency and not of the client. In the case of a permanent placement, the Applicant became an employee of the client. In the case of temporary appointments, the employment agency would be providing services to the applicant by way of inviting an application in response to an advertisement or by directly referring an applicant to a client from the information on its data base; by processing the information relating to an applicant and retaining the information on the Respondent's data base; and upon appointment to a temporary position, by accepting the applicant as an employee of the Respondent. The Tribunal in those circumstances would have little hesitation in deciding that the Respondent was an employment agency within the meaning of the definition in the Act and especially in regard to temporary placements, was providing a service as an employment agent, to an applicant for placement into a temporary position with a client of the Respondent. ORDERS OF THE TRIBUNAL 68 As the Tribunal has found that the Applicant has failed to substantiate that the Respondent discriminated against the Applicant under Section 38B(1)(a) of the Act, the Tribunal orders that the two complaints made by the Applicant against the Respondent, be dismissed. 69 The Tribunal makes no order as to costs. Decision revised 23 May 2002: grammatical error in paragraph 60 (ii)