Liseo -v- Canterbury City Council [1999] NSWADT 118

CITATION: Liseo -v- Canterbury City Council [1999] NSWADT 118

DIVISION: Equal Opportunity

APPLICANT: Jim Liseo

RESPONDENT: Canterbury City Council

FILE NUMBER: 981005

HEARING DATES: 11/01/1999; 11/02/1999

SUBMISSIONS CLOSED: 11/02/1999

DATE OF DECISION: 24 November 1999

K Raphael - Judicial Member BEFORE: L Farmer - Member L Taksa - Member

PRIMARY LEGISLATION: Anti Discrimination Act 1977

APPLICATION: Marital Status - Employment -

MATTER FOR DECISION: Principal matter

Applicant: G Butterfield of Marsdens, solicitors REPRESENTATION: Respondent: C Ronalds counsel, instructed by F Inverarity of Dunhill Madden Butler, solicitors

ORDERS: 1. The Respondent to pay the Applicant the sum of $15,000.00

1 Mr Ignazio (Jim) Liseo commenced employment with the Canterbury City Council as a gardener's labourer on 28 April 1989. On 25 May 1989 he commenced work as a basement attendant and remained in that position until the time of his resignation on 24 July 1997 at which time he was 65 years of age. There are three basement attendants in the employ of the Council and their duties include doing odd jobs around Council chambers, caretaking and opening of Council buildings, attendance at Council meetings and functions, delivery of business papers, minutes and mail to Councillors and newspapers officers, driving Councillors, the Mayor and senior management staff to civic functions and other destinations as required, acting as barman, waiter and general help and carrying out courier duties as required. 2 Mrs Rita Liseo is married to the applicant. In 1976 she was appointed to the Town Clerk/Mayor's department at Canterbury City Council as a secretary. In approximately November 1989 she was offered and accepted the position of executive secretary to both the Mayor and the General Manager and she continued in this position until 13 November 1995 when she took up a position as events coordinator. During the time that Mrs Liseo was an executive secretary she worked for Mr J Montague who since 1993 has been the General Manager of the Council. 3 Mrs Liseo's appointment with Canterbury Council had in fact begun in April 1975 as a secretary. In about 1981 Kayee Griffin was appointed Public Relations Officer/Mayor's secretary. Ms Griffin and Mrs Liseo worked together but it would appear that their relationship was not harmonious. In 1987 Ms Griffin left the employ of Council. She later was elected a Councillor and in September 1995 Mayor of Canterbury. 4 Mr Montague gave evidence that upon Ms Griffin's appointment as Mayor she made it clear to him that she did not want to work with Mrs Liseo. This came as no surprise to him or indeed to Mrs Liseo. They had apparently discussed the prospect of this happening before the local council elections and, Mrs Liseo claims, Mr Montague indicated that whilst he would have to find a part time secretary for the Mayor, she would remain as his secretary as she had been for the last fifteen years. As things turned out this was not a promise that Mr Montague kept. Instead he negotiated with Mrs Liseo to transfer her to another position in a building away from his and the Mayor's office. This was a position which Mrs Liseo accepted albeit with considerable misgivings and much resentment. 5 Whatever one may feel about the behaviour of Mr Montague towards Mrs Liseo it is not that conduct which is being considered by this Tribunal. The complaints made by Mr Liseo are discrete although they appear from the evidence to share a common base. 6 Section 39 of the Anti-Discrimination Act 1977 is in the following terms: 39(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of marital status if, on the ground of the aggrieved person's marital status or the marital status of a relative or associate of the aggrieved person, the perpetrator: (a) Treats the aggrieved person less favourably that in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital status or who does not have such a relative or associate of that marital status; or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital status, or who do not have such a relative or associate of that marital status, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 7 It has been conceded by the respondent that this form of discrimination does not apply solely to marital status as a concept but also to the marital status of a particular person. 8 Mr Liseo gave evidence that before September 1995 he was regularly utilised as a driver for the Mayor and for the General Manager. He also stated that he received regular overtime particularly at functions which were being organised by his wife. He did not feel that he was being singled out as the recipient of overtime but that overtime was worked fairly equally between the three members of staff, himself, Mr Savvides and Mr Lapi. Mr Lapi was employed on an afternoon shift and would often stay very late at night when Council was sitting. He was expected to and clearly got a much higher overtime payment than the other two. Mr Liseo was proud of his achievements and of his close association with Mayor Gorrie and Mr Montague the General Manager. He believed that he was a competent driver, was able to keep a confidence and carried out his other duties to satisfactory standard. That this was so was confirmed by all the witnesses who gave evidence for the City Council and particularly by an appraisal carried out in 1996 by his supervisor Mr Graham, a copy of which was found annexed to the President's Report, Exhibit 1. 9 Mr Liseo claims that after the election of Mayor Griffin things changed. He was not asked to drive the Mayor, he was hardly ever asked to drive the General Manager and his overtime opportunities declined. He claims that this change in his work practices were discriminatory and resulted from the fact that he was married to Mrs Rita Liseo. 10 In its defence the Council denies the allegation that any alteration, variation or amendment to the complainant's job duties or functions was related in any way to his marriage to Mrs Rita Liseo and states that "it was related solely to different functions or directions which the Council operations were undertaking, including the role and function of other staff, the General Manager and the administrative and management decisions of the Council properly made and duly implemented from variations or amendments to the complainant's job duties". 11 The respondent also argued in its defence that the pattern of overtime after 1995 was similar to that prior to that period and there was no discrimination exercised against Mr Liseo in this regard. 12 Mr Liseo claimed that it was because of the discrimination which he suffered that he determined to resign from the Council at the age of 65 and not continue for a further two years as he believed he was entitled and was fit enough to do. There was some argument at the commencement of the proceedings as to whether or not this allegation had been made in the complaint. The allegation appears clearly in a letter dated 1 May 1998 addressed to the President of the Anti-Discrimination Board found as Tab 5 of the President's Report and the Tribunal made a finding that the matter was thereby contained within the complaint and could be considered. 13 In his statement of evidence Mr Liseo said: "After September 1995, on a regular basis I would answer the phone for a driving job. I was also told by that person, be it the Mayor or Jim Montague, "put Harry on". Harry Savvides would then drive the Mayor or the General Manager out of the basement. I was never given any explanation as to why I was asked to put Harry on or why I was passed over to drive the official." 14 He then referred to separate occasions in February 1996 and March 1996 when the Mayor was to be driven and he was available to be drive her. However, on both occasions Mr Graham, his immediate superior drove the Mayor. 15 At the 1996 appraisal Mr Liseo raised this problem with Mr Graham and it is noted on the appraisal form. Mr Liseo gave evidence that he raised the matter of being passed over either for driving duties or for general overtime duties with Mr Graham approximately seven times. Mr Graham gave evidence and did not deny this. He stated that on a couple of occasions he passed comments through to his superior Mr Bawdinette. But there the complaints rested. 16 Mr Graham proved an important witness for the complainant. Although nothing about this appeared in his statement, he stated clearly in answer to a question from Ms Farmer of the Tribunal, that he had been told by Mr Bawdinette that: "Jim was not required to do the driving activities for the Mayor on the functions the Mayor was attending." 17 Mr Graham said that he told Mr Liseo of this directive and agreed that it could not be explained by Mr Liseo's driving ability or any other personal attribute. He stated that this direction was made in or around December 1995 and it is therefore not asking the Tribunal too much for it to conclude that the sole reason for the directive was the Mayor's antipathy to Mr Liseo arising out of his marriage to Mrs Liseo. 18 Mr Graham went on to say in response to examination from the complainant's solicitor that he had told the respondents and their legal advisors about this directive and certainly once it had appeared in evidence little was done to refute it. It could have been refuted by the production of Mr Bawdinette or the Mayor but neither appeared and the Tribunal is entitled to assume an inference that any evidence they could give would not be of assistance to the respondents Jones v Dunkel (1959) 101 CLR 298. 19 There can be no doubt that this directive whether it came from the Mayor or not was an act of discrimination in that it treated Mr Liseo less favourably than in the same circumstances, or in circumstances which are not materially different the respondent treated a person of different marital status. The Tribunal accepts the evidence of Mr Liseo that this exclusion from mayoral driving duties caused him hurt, anxiety and stress and contributed to his decision to leave his employment with the Council. 20 Mr Liseo also claimed that he was discriminated against by the General Manager in that he was not asked to drive the General Manager with the same regularity that he had done prior to the appointment of Mayor Griffin. Mr Montague gave evidence. During the course of that evidence he stated that he had concerns about driving with Jim Liseo and nonetheless he used him quite a few times. The Tribunal found Mr Montague's evidence contradictory and unimpressive. We prefer the evidence of Mr Liseo that he and Mr Montague had got on very well up until the time that Mayor Griffin had been appointed and that thereafter their relationship deteriorated insofar as Mr Liseo was essentially ignored by Mr Montague. None of the complaints which were made about Mr Liseo's abilities were ever relayed to him by Mr Montague or by Mr Graham and the Tribunal can only come to the conclusion that they did not really have any merit. 21 Mr Montague also gave evidence that Mr Graham had told him that Mr Bawdinette had told Mr Graham that he had told Mr Liseo that the Mayor had said that Mr Liseo was not to drive him. It is surprising that with that knowledge the Council continued to defend these proceedings. The Tribunal finds that Mr Liseo was discriminated against by the Council in excluding him from driving the Mayor and to a great extent Mr Montague. 22 Considerable time was spent in argument relating to whether or not Mr Liseo was discriminated against in respect of the provision of overtime. Evidence was given concerning the use of Mr Liseo during citizenship ceremonies and the fact that they were substantially reduced after 1995. Evidence was also given of Mayor Griffin's predilection for driving herself and that the number of social functions organised by the Mayor or the Council reduced during her tenure. This is accepted by the Tribunal but it has had regard to the graph which appears as Appendix 1 Tab 3 of the President's Report. That graph is based upon the overtime earnings of all three basement employees and clearly indicates that up until 1995/1996 the overtime arrangements for Mr Savvides and Mr Liseo rose and fell at similar rates. Mr Savvides always earned more money in overtime than Mr Liseo and this is not a point of complaint. In 1996 through to 1997 Mr Savvides' overtime goes up strikingly and Mr Liseo's goes down. There is in addition an Appendix 5 which sets out broken down by categories the hours of overtime worked between the years 1993 and 1997 in respect of the three members of staff. In 1996 Mr Liseo had no work under the categories of "standing in Council meetings and various meetings and other committees" whereas in 1995 he had 16.5 and 3 respectively. In 1997 he had nil in either category. In 1995 Mr Savvides had 23.25 hours driving the Mayor, General Manager and Councillors which went up to 53.5 in 1996 whilst Mr Liseo only did .5 hours in 1996. 23 The respondents alleged that if there was this difference between the overtime undertaken by Mr Savvides and Mr Liseo it was because Mr Liseo was not pulling his weight and refused overtime. Mr Graham gave evidence of three occasions upon which Mr Liseo declined overtime. Mr Liseo said there were only two such occasions and both were family birthdays. Even if the Tribunal accepts Mr Graham's evidence it does not make up for the diminution in work indicated by the graph. 24 The Tribunal is satisfied that from this evidence Mr Liseo was discriminated against in the distribution of overtime. 25 What is surprising is that if there really were all these problems with Mr Liseo as an employee that they did not manifest themselves in any form of warning or complaint to him from the human resources department of the Council. Mr Graham did give evidence that he went down to the basement on a couple of occasions to "sort things out" but Mr Graham's method of sorting things out was to tell the three members of staff down there that they were all big boys and should learn to live with one another. The Tribunal takes the view that Mr Graham was well aware that there were problems with Mr Liseo, that these problems were caused by the Mayor's antipathy to his wife and that there was really very little that he could do about it. It was no doubt with some considerable relief that the Council received Mr Liseo's resignation on 11 July 1997 effective 25 July 1997 (Exhibit 1). Certainly no-one asked him to stay and no-one asked him why he was resigning. 26 The statement of resignation does not make any reference to the discrimination suffered by Mr Liseo. He now asks the Tribunal to find that it was caused solely by this discrimination and the feelings which it engendered in him. There is no independent corroboration of this decision in the form of correspondence with the Council or discussions with workmates or friends. The Tribunal is of the view that the discrimination did form part of Mr Liseo's reasons for resignation but we are not satisfied that it was the sole reason. The Tribunal also notes that no evidence was led as to any attempt to mitigate the loss which Mr Liseo now claims he has suffered although the Tribunal appreciates that at the age of 65 there is probably little that he could do to obtain a position given his apparent lack of qualifications. 27 The respondents take issue with Mr Liseo's complaints that the discrimination he suffered caused him migraine headaches and other physical discomfort. They produced a record of his sick leave which made no reference whatsoever to migraine. Mr Liseo states that he had had migraine for many years and that if he took time off because of it he never made a big point of it. The respondents then countered with the fact that there was no evidence that Mr Liseo's migraines had got any worse as a result of any discrimination which he had suffered. The Tribunal is of the view that in all probability Mr Liseo did take some time off because of migraines and that time off was the time off without medical certificates. The Tribunal is satisfied that Mr Liseo was stressed by the treatment that was meted out to him and by the treatment which was meted out to his wife. The Tribunal believes that in all the circumstances Mr Liseo is entitled to recover damages from Council and that the appropriate measure of those damages taking into account his claims for loss of overtime payments, loss of the opportunity to work longer and the effect on his health and general wellbeing would be the sum of $15,000.00. 28 The Tribunal orders Canterbury City Council to pay Mr Jim Liseo the sum of $15,000.00.