Equal Opportunity Tribunal of New South Wales CITATION: Wakim -V- Franklins Limited [1997] NSWEOT COMPLAINANT: Bridget Wakim RESPONDENT: Franklins Limited NUMBER: 131 of 1995 Mr Graham Ireland ( Judicial Member ) TRIBUNAL: Ms L Farmer OAM Mr M Luger GROUNDS OF COMPLAINT: Discrimination on the grounds of race in the area of employment and unlawful victimisation DATES OF HEARING: 08/19/1996; 08/20/1996; 08/23/1996; 10/04/1996; 10/10/1996; 10/11/1996; 12/13/1996 DATE OF JUDGMENT: 06/25/1997 Complainant: Mr B Hurley Steven Meyer Nazarian & Co (Solicitors) LEGAL REPRESENTATIVES: Respondent: Mr J Catanzariti Clayton Utz (Solicitors) Mr M Sweeney (Counsel) JUDGMENT IN FAVOUR OF: Formal Background of Complaints The hearing of this complaint occupied seven hearing days which concluded on 13 December 1996. Written submissions were received from the Complainant's solicitor and the Respondent's counsel, with the submissions in reply being received from the Complainant on 2 April 1997. The inquiry involved consideration of detailed evidence of allegations made by the Complainant arising out of her employment by the Respondent, with the complaints focused on events occurring between the commencement of her employment on 17 November 1994 to 12 April 1995, the date on which her solicitor lodged a second complaint with the Anti-Discrimination Board ("the Board"). The Complainant made two complaints to the Board. By letter dated 10 February 1995 the solicitor for Mrs Wakim lodged a complaint with the Board that the Respondent had discriminated against Mrs Wakim arising out of events relating to her employment between November 1994 and 7 December 1994. In the points of claim filed with the Tribunal it is claimed "In the circumstances such statements were based on the Complainant's race and contravene ss 7 and 8 of the Anti-Discrimination Act 1977 (NSW) "the Act"). No further elaboration is given to the Tribunal, nor do the submissions of the Complainant elaborate, on which of the alternative arms of section 7(1) of the Act is relied on by the Complainant, nor as to which of the subsections of section 8 of the Act the Complainant relies on to establish the unlawful nature of the alleged discriminatory conduct of the Respondent. By reason of the nature of the presentation of the case of the Complainant, the Tribunal has proceeded to examine the complaint as one of direct discrimination under section 7(1)(a) of the Act and, to the extent that it might become appropriate to do so, on the basis that any finding of direct discrimination was unlawful under section 8(2)(a) of the Act, that is, "In the terms or conditions of employment which the employer affords the employee" and section 8(2)(c) "By ... subjecting the employee to any other detriment." A further complaint was made to the Board on behalf of Mrs Wakim by a letter written by her solicitor on 12 April 1995. The Complainant alleges that as a result of a series of actions by a senior employee of the respondent between 7 December 1994 and 12 April 1995, the Respondent, in breach of section 50 of the Act, unlawfully subjected her to a detriment. The particulars of claim filed by the Complainant do not specify under which of the sub-paragraphs of section 50(1) of the Act, the Complainant alleges she was subjected to the unlawful detriment. The Tribunal has proceeded to consider the complaint as a claim that Mrs Wakim was unlawfully subjected to a detriment on the ground, under sub-paragraph (c) of section 50(1) of the Act, namely, that she alleged that "The discriminator ... has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act." The presentation of the evidence to the Tribunal by the Complainant and by the Respondent concentrated on a detailed examination of the circumstances giving rise to the Complainant's allegations and of the facts and circumstances supporting her complaints. Most of the allegations and the evidence of the Complainant supporting her allegations, are denied by the respondent and the Respondent's witnesses. The main task of the Tribunal has been to carefully examine the conflicting evidence and where appropriate, to determine whether the Complainant has by the application of the law relating to the standard of proof, established to the satisfaction of the Tribunal, that her complaint has been substantiated. The two complaints have been brought to the Tribunal for inquiry as a result of determinations made by the President of the Board in accordance with the Act. It is useful to examine the summary supplied by the President of the Board to the Tribunal, of the Board's consideration of the complaints. First Complaint - Racial Discrimination 10 February 1995 Letter of complaint. 8 March 1995 Letter from Board to respondent, setting out allegations by Complainant. 28 March 1995 Letter from Respondent to Board in response to complaint. 25 July 1995 Letter from respondent to Board with further response to complaint. 25 July 1995 Further letter from Respondent to the Board in response to complaint 1 and complaint 2. 15 August 1995 Letter to Board from Complainant's solicitor in response to respondent's letters of 25 July 1995. 25 October 1995 Letter from President to Complainant advising his decision to the complaint under section 90(1) of the Act, as lacking in substance. Second Complaint 12 April 1995 Letter from Complainant's solicitor to Board, alleging victimisation of Complainant by the Respondent. 1 June 1995 Letter from Board to Respondent seeking response to allegations. 25 July 1995 Letter by respondent to Board in response to complaint. 29 November 1995 Letter from Board to Registrar, Equal Opportunity Tribunal referring for inquiry this complaint, under section 94(1)(b) of the Act. In the letter of 29 November 1995 from the President of the Board to the Registrar of the Equal Opportunity Tribunal, the President also referred to the Tribunal for inquiry, at the request of the Complainant, under section 90(1) of the Act, the complaint of discrimination on the ground of race, being the first complaint made by the Complainant. General Background of Complaints It would also be convenient to list the chronology of the more relevant events as they apply to the two complaints. The events are not able to be segregated precisely, to each complaint, as there is relevance in some instances, to both complaints. First Complaint - Racial Discrimination DATE EVENT 8/10/94 Application for a job with Franklins Limited and first interview. 21/10/94 Second interview with Messrs Walton and Corbett. 7/11/94 Mrs Wakim commences training with Ms Sandy Lee at Franklins Leichhardt store (2-week training period). Late November 1994 (i)Mr Walton speaks to Mrs Lee re Mrs Wakim. (ii)Mrs Wakim goes to national support office at Chullora for one day with Ms Noun. (iii) Mr Walton telephones Mrs Wakim at Chullora. 22/11/94 Mrs Wakim commences work at Franklins Marrickville store. 28/11/94 Team Leaders meeting attended by Mrs Wakim and others. 1/12/94 Market Team Rally. Early December 1994 Ms Noun telephones Mr Walton re Mrs Wakim. 5/12/94 (i) Pre-Opening Day of Marrickville store. (ii) Mr Wakim complains to Mr Wilson re Mr Walton. 6/12/94 Opening of Marrickville store. 7/12/94 (i) Mr Walton asks Mr Corbett to prepare summary of training and job description of Mrs Wakim - to add to personnel file and to send file to head office. (ii) Mr Corbett confers with Mrs Wakim. (iii) Mr and Mrs Wakim make complaint at head office to Messrs Carlton, Rusbatch and Williams. (iv) Mr Carlton telephones Mr Walton re allegations. 8/12/94 (i) Mr Rusbatch speaks to Mr Walton re allegations. (ii) Mr Walton speaks to Mr Corbett. (iii) Mr Corbett speaks to Mrs Wakim. 10/2/95 Solicitor for Mrs Wakim lodges complaint to ADB. Second Complaint Re Victimisation 4/1/95 (i) Mr Walton telephones Mr Carlton. (ii) Mr Corbett confers with Mrs Wakim. (iii) Mr Corbett confers with Mr Walton. (iv) Mr Corbett instructs Business Risk International Pty Limited to investigate. 5/1/95 and 6/1/95 Ms Lee assists Mrs Wakim with December stocktake. 9/1/95 (i) Report by Ms Lee to the invoice department. (ii) Ms Andrade speaks to Mrs Wakim re delay in invoices. (iii) Ms Andrade meets with Mr Walton. (iv) Ms Andrade meets with Mrs Wakim. 10/1/95 Mrs Wakim makes request to Ms Andrade for Team Leader Meeting. 11/1/95 Mrs Wakim hands note to Ms Andrade re request for meetings. 12/1/95 (i) Meeting with Mrs Walton, Ms Andrade and Mrs Wakim. (ii) Ms Andrade types up record of meeting. (iii) Ms Andrade meets with Mrs Wakim. 13/1/95 Meeting between Mrs Wakim, Ms Andrade and Mr Keeffe. 19/1/95 Meeting between Ms Andrade and Mrs Wakim re report of 9/1/95. Ms Andrade makes written and typed notes of meeting. 15/1/95-20/1/95 Between these dates Mr Walton contacts Mr Jeffrey (CRI) for advice re performance of Mrs Wakim. 20/1/95 Mr Jeffrey contacts Mr Harris (solicitor) for advice and receives advice. (i) Mr Jeffrey drafts letter to be sent by Franklins to Mrs Wakim re her performance. (ii) Mr Jeffrey faxes draft letter to Mr Carlton at home. 20 & 21/1/95 (i)On one of these days Mr Jeffrey confers with Mr Walton re uncertainty to issue letter to Mrs Wakim. (ii) Mr Jeffrey faxes to Mr Carlton further version of draft performance letter. 16/2/95 Mr Rusbatch signs letter to Mrs Wakim re her performance. March 95 Ms Andrade meets with Mrs Wakim - impressed with February stocktake but requires additional duties. Early April 95 (i) Ms Andrade speaks to Mrs Wakim re month end figures. (ii) Ms Jackson phones Mr Walton re $3,000 discrepancy in stocktake figures. (iii) Mr Walton dictates warning letter number two. 5/4/95 Ms Andrade instructs Mrs Wakim to send figures to head office. 7/4/95 Mr Walton gives Mrs Wakim warning letter number two. 12/4/95 Solicitor for Mrs Wakim lodges second complaint to ADB. At the inquiry, through their representatives, the parties agreed on a chronology of events. That agreed chronology is the basis of the chronology listed above. Based on the evidence, the Tribunal has added further items to the agreed chronology. The Tribunal is satisfied that the additional items are established from the evidence. In considering the first complaint, it is relevant to note that Mrs Wakim is of Lebanese race, having been born in Beirut and migrated to Australia in 1977. She was educated in Australia to Year 11. Her only job experience prior to her employment by the Respondent, was for a period from June 1984 to June 1986 at an upholstery business where her duties included accounting, payroll, banking and ordering stock. Mrs Wakim was married in June 1986 at which time she stopped working. In August 1994 she completed a three-month full time customer service course. She applied for the position at Franklins Big Fresh Stores in response to a recruiting advertisement. She had three interviews for this position, at the third interview she was interviewed by Mr Adrian Walton, the marketing director responsible for the new Big Fresh Store at Marrickville, due to be opened before Christmas 1994. Mrs Wakim completed a written application for the position on 8 October 1994. There is a dispute as to the terms of her employment. Mrs Wakim submits that although the job of invoice clerk was a part-time position for 25 hours per week, she was assured that she could work longer, up to 32 hours per week if she so wished. She in fact worked for 32 hours per week from the time she commenced at the Marrickville store on 22 November 1994 to a time in January 1995, that is over the peak period leading up to and during the opening of the store. Mr Walton and Mr Corbett, the Personnel Team Leader at the Marrickville store, who was responsible for the appointment of Mrs Wakim, deny that the job offer encompassed the additional hours. The position of invoice clerk is important in ensuring proper conciliations and records are maintained by the Franklins store of all goods delivered to the store and the cost of those goods and the amount of the goods remaining in stock at the end of each accounting period. In addition the invoice clerk was responsible for recording and noting what was called inter-department transfers. There is a critical difference of opinion between Mrs Wakim and members of the accounting staff at head office and even with Mrs Wakim's supervisor at the Marrickville store, as to whether the invoice clerk was required to complete and remit to head office the inter-department transfer details on a weekly or a monthly basis. The Tribunal is satisfied that the evidence establishes that Mrs Wakim was instructed in accordance with the procedures manual prepared by Mr Lovegrove, a copy of which she made during her training period. The procedures manual was not issued by Franklins in a formal manner to its invoice clerks until April or May 1995. Mrs Wakim was quite entitled to rely on the instructions in that manual. However, she was criticised severely by Ms Sandy Lee after Ms Lee supervised the December stocktake at the Marrickville store, for not completing these transfers on a weekly basis. Ms Lee referred to a direction issued by the head office accountant which countermanded the instructions in the manual but she was not able to produce a copy of that instruction, nor state when and to whom the instruction was given. Mrs Wakim denied that she had ever received such an instruction. It is critical to the performance of an invoice clerk that a monthly stocktake is completed by either the Tuesday or the Thursday after the fourth Sunday in each month. Again, there was some dispute as to whether the appropriate deadline was the Tuesday or the Thursday. The Tribunal accepts that Tuesday was the appropriate deadline. In order to comply with the stocktake requirements, the invoice clerk must balance the total of the invoices supplied on a daily basis by the Team Leaders of each department within the store to within an allowed margin of 0.5 per cent of the monthly balances supplied by the Team Leaders to their respective departments. In order to complete the monthly stocktake it is necessary for the invoice clerk on a daily basis to receive from each of the Team Leaders their invoices for the day and to check those invoices daily and to have the Team Leaders sign off the results. The manual states that it is the responsibility of each Team Leader to complete this sign-off on a daily basis. Mrs Wakim experienced considerable difficulty, especially in the first month, that is in December 1994, in having the Team Leaders comply with these instructions. She was criticised severely by Mr Walton, who was also supported by Ms Andrade, that Mrs Wakim was not pursuing the Team Leaders to ensure that they completed these daily stocktake summaries. Mrs Wakim complained that the Team Leaders were not cooperative and that the non-cooperation started after she made her racial discrimination complaint to the head office managers on 7 December 1994. She said that she made every reasonable endeavour to get the Team Leaders to cooperate and that her job was made extremely difficult by their failure, in most cases, to supply figures on a daily basis. Complaint of Racial Discrimination We turn now to examine in detail the complaint of racial discrimination. The incident giving rise to the claim of racial discrimination, covers the period commencing on 7 November 1994, the date on which Mrs Wakim commenced training for her position as an invoice clerk, and the evening of 7 December 1994, the date on which Mr and Mrs Wakim formally complained to the senior executives of Franklins Limited at the company's head office at Chullora. Mrs Wakim states that Mr Walton, the marketing director in charge of the opening of the Franklins new Big Store at Marrickville, was antagonistic towards her throughout this period, especially after 21 October 1994 when he spoke to her in an unpleasant manner on the telephone because, as she alleged, he was upset because unbeknown to him Mrs Wakim had, at the direction of her training instructor, attended that day for training at the company's Chullora head office. The following day, 22 November 1994, Mrs Wakim commenced her role as invoice clerk at the new Marrickville store. She was interviewed by Mr Walton and by Mr Lovegrove, who at the time was the Seafood Team Leader at the Franklins Big Fresh Store at Marrickville. Prior to that, Mr Lovegrove had been responsible for writing the procedures manual of Franklins Limited, which set out procedures for the accounting for invoices at the Franklins stores. At the request of Mr Walton, Mr Lovegrove, on that day, questioned Mrs Wakim about her understanding of the accounting procedures. Mrs Wakim says that she overheard Mr Walton say to Mr Lovegrove, "I don't like her". Mr Lovegrove said that he was satisfied with the replies that Mrs Wakim gave to his questions and he was not asked in cross-examination, whether he overheard the comment allegedly made by Mr Walton. Mr Walton has denied that he made the comment. Mrs Wakim's perception of Mr Walton's attitude towards her, disturbed Mrs Wakim and has contributed to her unease in working with Mr Walton. On 28 November 1994 a Team Leaders meeting was held, to which Mrs Wakim was invited so that she could meet the Team Leaders with whom she would be working and on whom she would be dependent to complete her job as invoice clerk. At that meeting, Mr Walton addressed the Team Leaders and Mrs Wakim states that he referred to the need to change the venue of a Team Rally for the employees at the Marrickville store to be held on 1 December 1994 because the original site at the Tempe School was unsuitable because, Mrs Wakim alleges, he said, "All the ethnic graffiti that's on the walls" and then said, "What do you expect? This is an ethnic community." Mrs Wakim was also upset because she alleges that Mr Walton, in front of the assembly, rudely snatched papers from her hands and peremptorily asked her to leave the room. Mr Walton denies he used the term "ethnic graffiti" and states that he used only the words "graffiti". He also denies that he said "What do you expect, this is an ethnic community". He also denies that he was rude to Mrs Wakim. Evidence was given to the Tribunal by three Team Leaders present at the meeting, Mr Corbett, Mr Lovegrove and Ms Andrade. Mr Corbett states that he did not hear Mr Walton use the term "ethnic" at the team rally. Mr Lovegrove stated that it was possible that Mr Walton used the word "ethnic" but he did not have a clear recollection. Ms Andrade said she did not recall Mr Walton using the word "ethnic". On 1 December 1994 a Market Team Rally was held for most of the staff at the Marrickville store. The purpose of the meeting was to build up the staff morale for the opening of the store on 6 December. Mr Walton addressed the Rally. Mrs Wakim alleges that in his address Mr Walton referred to the diverse cultural background of the customer base of the Marrickville store and said, "I have never in my life worked with so many ethnics." Mrs Wakim states that she was shocked by this statement. She regarded it as a display by Mr Walton of his adverse attitude to persons of other races and it reinforced Mrs Wakim's view that Mr Walton, in particular, had an adverse attitude to Mrs Wakim because of her racial background. Mrs Wakim says that it was obvious to her that Mr Walton's comment had disturbed a number of the staff who were sitting near her at the Rally. She said she could sense the disquiet of these people and that one or two of them sitting next to her made comments to her which indicated that they were disturbed by Mr Walton's statement. Mr Corbett, the personnel team leader at the Marrickville store, stated, in cross-examination, that he did not hear Mr Walton make the statement. Mr Lovegrove was not present during Mr Walton's address to the staff. Ms Andrade stated that she could not recall Mr Walton referring to so many ethnics. The Respondent called two of the members of the staff who were sitting close to Mrs Wakim at the Rally. One witness said that she did not recall Mr Walton using the words "so many ethnics" but did recall him referring to "in such a multicultural society." The other employee said that Mr Walton did say "Well I must admit I've never before in my life worked with so many ethnics". She said that she did not take offence at this statement. The day before the opening of the Marrickville store, the Respondent held a special pre-opening day to which the staff and their families were invited to shop at the store. It was used as a test for the opening to the public on the following day. Mrs Wakim states that two events occurred on the pre-opening day which added to her disquiet about Mr Walton and his attitude to her. After she finished work at about 3.30 in the afternoon, she did some shopping in the store. When she came out of the store with a trolley basket, Mr Walton was standing at the entrance and she saw him direct a young employee to follow her to her car which was parked across the road from the store. When Mrs Wakim came to her car the young man was insistent that Mrs Wakim give him her trolley so he could take it back to the store. Mrs Wakim considered that the attitude of the young employee was a form of unnecessary harassment as it was her intention once she unloaded the trolley to take it back to the store. Mr Walton explains the incident on the basis of his concern that the store was inadequately supplied with trolleys and he was anxious to get the trolleys back quickly to the store and so he had directed the young employee to take Mrs Wakim's trolley back as quickly as possible. He denied that he had any intention of harassing her. At about 6.30pm that evening Mr Wakim accompanied his children to the store where they met Mrs Wakim. Mr Wakim asked to be introduced to Mr Walton. Mr and Mrs Wakim state that they saw Mr Walton at a point approximately 10 metres from them and Mrs Wakim moved towards him in order to introduce her husband. She states that Mr Walton, when he saw her and her husband, turned his back and deliberately walked away. Mr Walton states that he did not notice Mr and Mrs Wakim and that he was so busy on that day he would not have noticed them. Mrs Wakim states that she felt humiliated by Mr Walton's deliberate snub of herself and her husband. Mr Wakim stated that Mrs Wakim was so upset by this incident that on their way home in the car, Mrs Wakim told him of all the incidents which had occurred and which, in her view, had built up to a point where her feeling of humiliation and stress was causing a great deal of mental anguish. Mr Wakim resolved to complain to the senior management of Franklins and the following day he phoned Mr Wilson, an executive director at Franklins head office at Chullora, and made an appointment for he and Mrs Wakim to see Mr Wilson that night at Chullora. Mrs Wakim also alleges that Mr Walton had embarked on a campaign of harassment of her at the office at the Marrickville store where she occupied a section in a large room close to Mr Walton's office. Mrs Wakim states that frequently when Mr Walton passed her whilst she was in her office or in the corridor he would make remarks such as "Gee, I didn't realise that we've employed so many ethnics" and "There's so many ethnics around this place" and "Oh, so many ethnics around here" and "Look at all the ethnics in here". Mrs Wakim states that these comments were always made in her presence and they went on for about two weeks constantly. It is to be noted that Mrs Wakim was present at the Marrickville store from 22 November 1994 and up to the date of her complaint on 7 December 1994, a period of two weeks. It is not clear from the evidence on what days during this period Mrs Wakim was present at the Marrickville store and accordingly it is not possible to be precise as to the number of occasions on which Mrs Wakim alleges that she was subjected to this type of harassment. Mr Walton denies that he made these statements. Mr Corbett and Ms Andrade, the two members of the management staff at the Marrickville store who were in the closest proximity to Mrs Wakim stated that they did not hear Mr Walton make such remarks. When Mr and Mrs Wakim attended at the head office of Franklins Limited at Chullora on the evening of 7 December 1994, Mr Wilson was not in attendance but Franklins was represented by Mr Mark Rusbatch, a director of Franklins Limited, Mr Ross Carlton, the national human resources manager for Franklins Limited, and Mr Cliff Williams, the national internal audit manager for Franklins Limited. At the meeting Mr and Mrs Wakim stated their grievance about the treatment Mrs Wakim had received during her period of employment and in particular at what was alleged to be racially based discriminatory conduct of Mr Walton towards Mrs Wakim. Differing versions of the attitudes adopted at that meeting are given by Mr and Mrs Wakim on the one hand and the executives of Franklins on the other hand. The Tribunal did not find the detailed evidence of these different versions of assistance in formulating the Tribunal's views of the substance of this claim. The outcome of the meeting was an undertaking by Franklins Limited that it would investigate the complaint. Mr Carlton appointed Business Risk International Pty Ltd, a firm of investigators, to investigate the complaint. The Tribunal has been supplied with copies of reports made by that firm to Franklins Limited. The reports contain statements by a number of the witnesses who gave evidence to the Tribunal. The statements do not, in any material respect, support the claims of Mrs Wakim. Ultimately, Franklins advised Mrs Wakim that they were not able to substantiate her complaint. Mr and Mrs Wakim stated that the attitude adopted by the executives of Franklins at the meeting of 7 December 1994 was not conducive to a conciliation of her complaint. They were not satisfied with various aspects of the meeting. These concerns, they submit, are supported by events which occurred at the Marrickville store on the afternoon of 7 December 1994 and on the following day. After lunch on 7 December 1994 Mrs Wakim was called to a meeting in Mr Walton's office, attended by Mr Corbett. Mr Walton asked Mrs Wakim, "How are you settling in? Do you need anything? Do you want anything? Are you comfortable with your job? Do you have any problems with your job?" Mrs Wakim said she did not have any problems with her job but said that she needed some doors on cupboards where she sat in the office. Mrs Wakim states that Mr Walton then said, "Well, about your hours. There is another job going, and that is to write letters back to customers. We certainly don't want our customers' letters unanswered." He then said, "But that won't be till early next year." He then said, "Well, let's go to the general office and see about these cupboards". As a result of the inspection of Mrs Wakim's office, it was agreed that the cupboards would have doors placed on them, that Mrs Wakim's chair was unsatisfactory and would be replaced and that she could select a corner in the office where she would prefer to work. Later that afternoon, Mr Corbett had a conversation with Mrs Wakim in which he again asked her if she was happy with her work and she said to Mr Corbett that she had no problem with her work but she did have a problem with Mr Walton and that he did not like her. She then told Mr Corbett about the remarks Mr Walton was making in her presence concerning so many ethnics. Mrs Wakim says that Mr Corbett said, "We have had the same problem with him in other markets. Why didn't you come to me sooner?" Mr Corbett then told Mrs Wakim that Mr Rusbatch had contacted him that afternoon to ask what was going on between Mr Walton and her. Soon after, Mr Walton called Mrs Wakim into his office with Mr Corbett. Mr Walton then said, "Look, about your hours, I really think that this job only needs 20 to 25 hours to be done. And about those letters, we'll see what happens next year." The following morning Mr Rusbatch came to the office and had a conversation with Mr Walton. Mrs Wakim told Mr Corbett that at the meeting the previous evening at head office she had told the executives that Mr Corbett had said that he had this sort of problem with Mr Walton in other markets. This disturbed Mr Corbett. About an hour later Mr Rusbatch called two of the Team Leaders into the main office and about two hours later Mrs Wakim overheard Mr Rusbatch say to Grant Corbett, "I'm sure you know what to do. I know I can trust you." A few minutes later Mr Corbett told Mrs Wakim that he was in big trouble and asked her to ring Mr Rusbatch and tell him that she had misunderstood what Mr Corbett had told her the previous afternoon. Mrs Wakim refused to do this. Mr Corbett stated that Mrs Wakim had misunderstood him. He did not imply or intend to imply that Franklins Limited had had problems with Mr Walton in other markets relating to Mr Walton's attitude about ethnics or race but he meant that Mr Walton became tense and difficult with the responsibility of opening large big stores. Mr Corbett also stated that on the afternoon of 6 December he had been asked to assemble the personnel file of Mrs Wakim and to send it immediately to head office. He said that he compiled in his handwriting a job description of Mrs Wakim and that he also included in the file a photocopy of the handwritten procedures manual which he had taken from the notes made by Mrs Wakim during her training. This, he said, was to record the extent of Mrs Wakim's training. This demonstrates to the Tribunal that at this time little attention had been given by Franklins Limited to the details of Mrs Wakim's employment. A formal job description had not been prepared and no proper record has been kept of the details of Mrs Wakim's training. Findings for Claim of Racial Discrimination It is with this background that the Tribunal has to consider whether in the circumstances the treatment experienced by Mrs Wakim was discriminatory on the ground of her race (section 7) and, if so, if the discrimination was unlawful under the terms of section 8 of the Act. In order to base the finding of discrimination on the ground of race under section 7(1)(a) of the Act, it is necessary for the Complainant to satisfy the Tribunal that on the balance of probability, and having regard to the serious nature of the allegations, that the alleged incidents of discrimination in fact occurred. Mrs Wakim has sought to lay the foundation for her claims of discrimination by showing that from the start of her employment Mr Walton had taken an adverse attitude towards her. She says that it was clear that Mr Walton did not like her and that when opportunities arose where he could refer to her ethnic background he did so in circumstances where the derogatory statements would not be overheard. She alleges that Mr Walton humiliated her at the pre-opening of the store when he harassed her when she was taking purchases to her car and he added to that humiliation when he snubbed she and her husband at the store that evening. The duplicity of Mr Walton's attitude towards her is demonstrated, in her view, by his attempt on the afternoon of 7 December to ingratiate himself with her prior to her meeting with the head office executives that evening. The discrimination directed to her by Mr Walton is further illustrated, in the Complainant's submissions, by the broader racially prejudiced attitude of Mr Walton demonstrated by his alleged statements about ethnics at the Team Leaders Rally and at the Staff Rally. These other statements, of course, were not directed specifically at Mrs Wakim but she stated that she was offended by them and although she stated that other staff around her at the time expressed similar offence, Mrs Wakim was unable to establish through independent witnesses that they supported her view of the derogatory nature of the comments, or that the comments were made at all. Although for convenience the Tribunal has up to this point related the allegations of racial discrimination, in isolation from subsequent events, it cannot be entirely segregated as the subsequent events to some extent support in a general way the views of Mrs Wakim that the attitude of Mr Walton and of Franklins Limited towards her and their treatment of her justifies her general disquiet. In particular, for the reasons expressed later, the Tribunal must doubt the extent to which it can accept Mr Walton's denials. As we will demonstrate, Mr Walton has not been frank in his evidence to the Tribunal and there are other parts of the Respondent's evidence generally which is not satisfactory. Notwithstanding some hesitation in accepting the denials of Mr Walton concerning his conduct to Mrs Wakim and the nature of the statements he made at the public rally, the Tribunal is not satisfied that Mrs Wakim has established that Franklins Limited, through is employees, has treated her less favourably than it would have treated a person of a different race in the same or similar circumstances. The Tribunal is not satisfied that on the evidence presented to it that it would be justified in finding that Mr Walton made the discriminatory statements directly to Mrs Wakim as she alleges, or that Mr Walton made the statements in the form that Mrs Wakim alleged he made at the Team Rally or at the General Staff Rally. In relation to the other instances of alleged less favourable treatment, the Tribunal is not satisfied that those examples of less favourable treatment were causally connected to Mrs Wakim's race. At the Team Leaders' Rally and at the General Staff Rally, it is probable that Mr Walton used the word "ethnic". Mrs Wakim took offence at the context in which the word "ethnic" was used on these occasions. Only one witness supports Mrs Wakim in the description of the statement made at the Team Rally but that witness did not consider the phrase to be offensive or derogatory. The other witnesses at these rallies did not attribute any offensive or racist remarks to Mr Walton. There was no evidence that any other staff member of Franklins Limited had complained about the statements of Mr Walton at either of the rallies. It has been submitted that if viewed in isolation the various incidents related by Mrs Wakim might not be considered as illustrating less favourable treatment of her by Mr Walton or by Franklins Limited, but when viewed as a whole they demonstrate a pattern of less favourable behaviour directed against her. The submission continues, that the apparent reason for this behaviour was that Mrs Wakim was of Lebanese background, a matter which was known to Mr Walton. Reference was made to the decision of Chesson v Duxton (1990) EOC 92-295, as authority for the proposition that once a finding is made that racial epithets were used, the inference is inescapable that the Complainant was treated less favourably than other persons would have been treated because of her race. An examination of that decision shows that there was a finding of the use against the Complainant of the most clear racial epithets from which the connection with the Complainant's obvious Aboriginal race, was axiomatic. The inference in that case of the connection with the Complainant's race was indeed inescapable. In this complaint the remarks made by Mr Walton at the rallies were not directed specifically at Mrs Wakim and no other attendee at those rallies complained, nor did the other witnesses before the Tribunal who attended the rallies, with one exception, consider that the remarks were offensive. In these circumstances the Tribunal cannot accept the submissions that the evidence justifies the Tribunal in finding that if reference was made by Mr Walton to "ethnics" at those rallies, it was used in an offensive context. Nor can the Tribunal find that such references, if made, constitute behaviour of a less favourable nature directed at Mrs Wakim on the ground of her race. The Tribunal has considered the totality of the evidence, in addition to the separate consideration of the various incidents. For the reasons already given, the Tribunal, being of the opinion that the incidents in isolation are not established, considers that it is not able to then take the whole of the circumstances into account and to find that nevertheless Mrs Wakim has been less favourably treated on the ground of her race within section 7(1)(a) of the Act. Accordingly, the Tribunal directs that the complaint against the Respondent that it discriminated against the Complainant on the ground of her race under section 7(1)(a) of the Act, be dismissed. Claim of Victimisation It is now necessary to consider the claim of victimisation under section 50 of the Act. Following the meeting at the head office of the Respondent on 7 December 1994, Mrs Wakim alleges that a series of events occurred which demonstrate that as a result of the allegations made at that meeting the Respondent subjected her to detriments and accordingly the Respondent has acted in breach of section 50 of the Act which for present purposes provides: "50(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) ... (b) ... (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act; or (d) ..." We have already set out the chronology of the relevant events that took place after 7 December 1994. It is clear that on that occasion Mrs Wakim made allegations against Mr Walton and against Franklins Limited that amounted to a contravention of this Act. This Tribunal has held that a contravention of section 50 of the Act is not dependent on a finding that the allegation of discrimination occurred and that section 50 can apply independently of a finding that a claim of discrimination has not been substantiated. Mrs Wakim states that after 7 December 1994 her task of completing her role as invoice clerk was made more difficult. The fact that she had made a complaint to head office about Mr Walton, became common knowledge within the Marrickville store and also at the head office of the respondent. A consequence, was the increasing failure by the Team Leaders of the departments in the Marrickville store to cooperate with Mrs Wakim by providing her daily with sign-off of the invoices of goods into their departments. This was a requirement of the procedures manual and was an essential prerequisite to Mrs Wakim being in a position to complete her checks and conciliations of the invoices and ultimately, on a monthly basis, to complete her monthly stocktake report to head office. In addition, Mrs Wakim was required on a regular basis to codify and report to head office on "Interdepartmental Transfers" which were records of movement of goods between departments. The procedures manual provides for these latter reports to be made on a monthly basis, but head office required the report on a weekly basis. Mrs Wakim alleges that the Team Leaders of the department were deliberately withholding invoices in order to make her task more difficult. She was criticised for her failure to comply with the requirements of having daily balances of invoices. Mrs Wakim points to the procedures manual which states clearly that it is the responsibility of the Team Leaders to supply invoices and balances to her on a daily basis. Mrs Wakim was criticised for not facing up to Team Leaders to ensure that they completed their task. Mrs Wakim states that she did attempt constantly to pursue Team Leaders but was rebuffed and on one occasion a Team Leader swore at her. This was confirmed in evidence by the Team Leader. The evidence does not establish that the actions of the Team Leaders in failing to supply Mrs Wakim on a daily basis with invoices and summaries was deliberately aimed at causing her to be unable to comply with the requirements of her position. The evidence shows that during the period after the opening of the store on 6 December 1994, the size of the store and the volume of goods which were processed placed great strains on the administrative system as a whole and that Team Leaders were hard pressed to keep up with the operational demands of their job, including the daily completion of the statements required by Mrs Wakim. Tolerance was required from all concerned but, for the reasons that we will refer to, little or no tolerance was shown to Mrs Wakim. In the view of the Tribunal the attitude adopted by many of the more senior members of the operational staff at the Marrickville store and at head office was based on the view that was generated following her complaint, that Mrs Wakim was a troublemaker and that she was no good at her job and that she should be moved on or replaced. In late December 1994, May Noun, the assistant financial accountant at the head office of Franklins, advised Mr Walton that she was concerned about a number of errors in the paperwork being supplied by Mrs Wakim. Mr Walton agreed with her suggestion that Sandy Lee, an experienced invoice clerk, visit the Marrickville store and assist Mrs Wakim to complete her first stocktake due to take place in the first week of January 1995. May Noun stated that she was generally concerned about Mrs Wakim's capability because on the day that Mrs Wakim attended head office during her training, May Noun gained the impression that Mrs Wakim was not taking notes and was not concentrating. In cross-examination, Ms Noun agreed that she had not observed Mrs Wakim, during her day at head office training, take copious notes from the procedures manual. The Tribunal was left with the view that Ms Noun had formed a prejudicial view about Mrs Wakim's ability without being able to substantiate that view. Sandy Lee is the New South Wales invoice clerk for Franklins Limited. In this position she was required to travel to each of Franklins stores and assist the market invoice clerks with invoicing procedures. In November 1994 she was the invoice clerk at Franklins Big Fresh Leichhardt store. It was there that she trained Mrs Wakim for a period of approximately two weeks. Ms Lee stated she noticed that Mrs Wakim failed to take many notes during her training and that she did not appear to understand many of the procedures. She said she became frustrated with Mrs Wakim during the training. In cross-examination, the prejudice against Mrs Wakim started to emerge. When shown handwritten notes of Mrs Wakim, Ms Lee at first denied that they were in Mrs Wakim's handwriting and later when shown the copies of the procedures manual that Mrs Wakim made at head office, Ms Lee prevaricated about the adequacy of the notes. Ms Lee stated further that she went to the Marrickville store on 5 and 6 January 1995 and assisted Mrs Wakim with the December stocktake; that she went there at the request of May Noun. Later in her evidence Ms Lee agrees that it was the current practice of Franklins that Ms Lee attended a new store to assist the invoice clerk on the first stocktake. This action at the Marrickville store did not happen with two earlier stores that were opened at Gosford and Nowra. Ms Lee stated that when she got to the Marrickville store, the attempt that was made by Mrs Wakim to complete the standard form stocktake was not correct. She said she had to assist Mrs Wakim by demonstrating how to do the stocktake and doing it herself. She said that Mrs Wakim had no interest in it and that she "even went home early when the result was due and I remember I had to stay until 7 o'clock." Ms Lee then had to agree that Mrs Wakim's normal finishing time was 3.30pm. Mrs Wakim stated that she was told both by Melinda Jackson of head office and also by Sandy Lee during training, that either Sandy Lee or Melinda Jackson would come to the Marrickville store and help her with the first stocktake. She stated that she was told not to do the stocktake, not even attempt to do it on her own. Ms Lee then wrote a report to Mr Walton dated 9 January 1995. The report states, "I found the following areas in urgent need of attention" and then contains eight items of criticism of the procedures in the invoice department at Marrickville. Ms Lee in cross-examination agreed that the report was not specifically about Mrs Wakim and when examined on each of the items, Ms Lee agreed that only a few minor items were critical of Mrs Wakim's performance. At one point, Ms Lee had to agree that an item of criticism did not agree with the procedures manual and stated that the procedures manual had been countermanded by direction from the head office accountant, but this direction had not reached Mrs Wakim. Ms Lee takes the view that although the Team Leaders were delaying giving invoices to Mrs Wakim, that it was Mrs Wakim's responsibility to follow up with Team Leaders, and that was part of her training. Ms Lee said that she would rate Mrs Wakim as just below average in her performance. She had only trained three other invoice clerks and she did not have the same problems with the other two. At this time, Maria Andrade was the Office Team Leader and the Personnel Team Leader at Franklins Marrickville store. On 9 January 1995 Mrs Wakim approached Ms Andrade with a request for a Team Leaders meeting about invoicing. She also asked for a separate meeting with Mr Jeremy Keeffe, Assistant Marketing Director at the Marrickville store. Ms Andrade told Mrs Wakim that she would get back to her about holding the meetings. Mrs Andrade states that she went to Mr Walton and told him of Mrs Wakim's request. Mr Walton refused the request for the meeting with Mr Keeffe. As he said Mr Keeffe had nothing to do with invoices it was not his responsibility and that if Mrs Wakim wanted a meeting with the Team Leaders she would need to set out her agenda, as he wished to see what it was she wished to discuss with the Team Leaders. The next day, in the women's change room, Mrs Wakim handed to Ms Andrade a handwritten note with a request that Ms Andrade sign the note. The note set out that Mrs Wakim had requested the meetings the previous day and that Mr Walton denied the request. Ms Andrade signed at the foot of the note "I have received a duplicate of the above". Ms Andrade then showed Mr Walton a copy of the note. He said that Ms Andrade should not have signed the note and said, "This is getting out of hand. Could you arrange for a meeting between the three of us." The next day, on 12 January 1995, a meeting was held in Mr Walton's office between he, Mrs Wakim and Ms Andrade. Mr Walton said that he was worried about the way Mrs Wakim's job was going, especially the delay in the end of month stocktake. He went on and said that he did not think that Mrs Wakim was happy in her job and agreed that she had had problems during her training. Ms Andrade and Mr Walton state that Mr Walton said that he understood Mrs Wakim had complained about his use of the word "ethnic". He said: "I do not understand why you complained. However, I apologise profusely if I ever gave you the impression that what I was saying was racist. The reason I used the word 'ethnic' is that we are trying to market to the local community. We are trying to capture the local business because this is something that Coles was unable to do." Mrs Wakim denies that Mr Walton apologised. There is a considerable difference in the evidence of Mr Walton and Ms Andrade and the evidence of Mrs Wakim, of the contents of the discussion at this meeting. When Mrs Wakim left the meeting, Ms Andrade typed up a summary of the meeting. There is some difference as to the extent of Mr Walton's participation in the preparation of the summary. The Tribunal is satisfied that Mr Walton played a large part in the dictation of the summary and that the summary represents what he wished to have recorded. In the view of the Tribunal it is to that extent a self-serving document and one which does not give a full or accurate account of the meeting. The summary document is headed "Re: Counselling of Bridget Wakim". Mrs Wakim denies that any mention was made to her that the meeting was a counselling session; nor does the content of the meeting suggest that it took the form of a counselling session. The note was signed by Mr Walton. Mrs Wakim was not told that the meeting was to be conducted as a counselling session. Ms Andrade and Mrs Wakim agree that Mrs Wakim was disinclined to participate in the meeting, except that she wanted to know how many hours she was supposed to be working. It was pointed out that as an invoice clerk her hours were 25 hours a week and this is the standard across all of Franklins markets. Mr Walton pointed out that it was not appropriate to have a meeting about invoices with Mr Keeffe and that if a meeting with Team Leaders was to be held it would be necessary to write out beforehand what was to be discussed. Mr Walton also suggested that Mrs Wakim might wish to consider a change of position to a customer service operator. Mrs Wakim's version is somewhat different in that she says that Mr Walton was angry, that he said that her hours were strictly 25 hours per week and that there will not be any hours in the cash office, nor will there be any other hours to be given to her. She says that Mr Walton said that he was not happy with her performance and that she should resign as an invoice clerk and that he offered her the job as a customer service specialist at Leichhardt. He said, "There's a job at Leichhardt, if you wish to stay with the company you can go and work there." He also said, "If you decide that you want to stay as an invoice clerk your job will be reviewed and I will be expecting 100 per cent." The Tribunal is unable to resolve the differences in the versions of what was said at the meeting. It is clear however that the relationship between Mrs Wakim and Mr Walton had deteriorated. On 13 January 1995 Ms Andrade had a meeting with Mrs Wakim in which Mrs Wakim stated that the Team Leaders were deliberately delaying invoices and that they were ganging up on her. Ms Andrade stated that they were not ganging up but "Some Team Leaders have no back-up and they are really busy." Mrs Wakim said that she could not do her job because of this. At the end of the meeting Ms Andrade handed Mrs Wakim a copy of the counselling note and asked her to sign at the bottom of the page. Mrs Wakim refused and said that she did not agree with what was in the note. Ms Andrade then said that she was still going to train someone else as a back-up for Mrs Wakim's job. On 19 January 1995 there was a further meeting with Mrs Wakim. Mrs Wakim reported directly to Ms Andrade, who had received the report from Sandy Lee dated 9 January 1995. Ms Andrade then discussed the Sandy Lee report with Mrs Wakim, point by point. During this discussion Mrs Wakim pointed out what she considered were the errors in Sandy Lee's report. Ms Andrade made some handwritten notes on the copy of the report and she and Mrs Wakim signed a copy of the notes. Ms Andrade also made some handwritten notes during the course of the meeting. She then went to her office and typed up a summary of the meeting. On 10 February 1995 the solicitor for Mrs Wakim sent a letter to the Anti-Discrimination Board setting out details of the complaint against the Respondent based on the events up to 7 December 1994. On 16 February 1995 Mr Rusbatch signed a typed letter addressed to Mrs Wakim. The letter was handed to him by Mr Ross Carlton, the National Human Resources Manager. Mr Carlton received the draft of the letter from Mr Mitch Jeffrey, a principal of Business Risk International Pty Ltd. Mr Jeffrey stated that on 20 January 1995 he was contacted by Mr Walton. Mr Walton raised with Mr Jeffrey his concern about Mrs Wakim's ability to complete her job, that he felt that something needed to be done, that he was not sure what to do following the complaint that had been made. Mr Jeffrey stated that it was agreed that he would obtain legal advice from an industrial advocate. Mr Jeffrey then proceeded to contact Mr Greg Harris, solicitor, who sent Mr Jeffrey examples of letters used in other cases of employees' under-performance. Mr Jeffrey worked late on the Friday night of 20 January to draft a letter addressed to Mrs Wakim outlining the Respondent's criticisms of her performance. The draft was based on the examples supplied by Mr Harris. Late on the evening of 20 January, Mr Jeffrey sent by fax, a copy of his draft to the home of Mr Ross Carlton. At some time, either on Friday 20 January or Saturday 21 January, Mr Jeffrey had a further conversation with Mr Walton. Mr Walton said that Mrs Wakim's performance had improved a bit and he was not sure what he should do now. Mr Jeffrey said maybe Mr Walton should consider holding off sending the letter pending the result of the investigations going on relating to the racial discrimination matter. Mr Jeffrey then faxed a further draft of the letter to Mr Ross Carlton. This intensive activity on 20 and 21 January is explained because Mr Jeffrey was about to go on leave. He said that he left the sending of the performance letter up to Franklins management and he had no further dealings with the letter after that time. Mr Rusbatch stated that Mr Carlton handed him the letter addressed to Mrs Wakim and that he signed the letter and handed it back to Mr Carlton. Mr Rusbatch said he had no further contact with the letter after that time. In the letter from Franklins Limited to the Board dated 28 July 1995 and signed by Mr Ron Silvers, the Company Secretary, in answer to various questions and statement of allegations raised by the Anti-Discrimination Board to Franklins Limited, in the context of setting out the history of the Respondent's contact with Mrs Wakim, it is stated: "Annexed and marked with the letter 'D' is a letter sent to Mrs Wakim about her performance, dated 16 February 1995. The letter indicates to Mrs Wakim the concerns that Franklins Big Fresh held about her ability to perform her duties, and the options that Franklins Big Fresh had offered her to assist her, or to relocate her into a position more suited to her." Mrs Wakim denies that she received this letter and she asserted that the letter was not drafted until some time in July 1995 and backdated and had never been sent to the Complainant. Mr Walton stated that he knew nothing whatsoever of this letter. He said the first time he knew about the existence of the letter was some time mid-1995. He said he did not get a copy of the letter. He said he found it unusual that he was not copied in with a letter of that nature sent to one of his staff and that Mr Rusbatch had never mentioned the letter to him, but he had a vague recollection that there may have been some discussion along the lines that "We have sent Bridget a letter". However, Mr Walton did not ask for a copy of that letter. Mr Walton denied that he was involved in the preparation of the response to the Anti-Discrimination Board. He denied that he was involved in putting the letter together or that he had any involvement with it. It is the view of the Tribunal that this letter is a self-serving document, drafted with care by external advisers, for the purpose of establishing the justification for the termination of Mrs Wakim for the non-performance of her job. For reasons which will become clearer with later events, and having regard to the events that have already occurred, the Tribunal considers that the giving of a letter in these terms to Mrs Wakim was not justified. This view is reinforced by the likelihood that the letter, even if signed by Mr Rusbatch as a matter of careless routine, was never in fact sent by Mr Carlton, to whom Mr Rusbatch handed the letter for despatch. The Tribunal comes to this conclusion based on the principles in Jones v Dunkel (1959) CLR 120 and the failure by the Respondent to call Mr Ross Carlton, the Human Resources Manager of the Respondent, who was the person in a position to refute any inference that the letter was not sent by him or by his direction. The Respondent had filed with the Tribunal a statement by Mr Ross Carlton but failed to call Mr Carlton to confirm his statement. At the end of the proceedings on the second-last day, counsel for the Respondent stated that on the last day it was intended by the Respondent to call each of the remaining persons whose statements had not been dealt with. This included Mr Carlton's statement. On the last day, at the end of the Respondent's case, counsel for the Respondent advised the Tribunal that it was not intended to call Mr Carlton as he was in Melbourne and it would be difficult for him to be present. This was stated at the end of the day. Earlier that day the Respondent had called Mr Alan Hunter to support his statement. Mr Hunter resides in Robertson, Queensland. In these circumstances the Tribunal is entitled to infer that the evidence of Mr Carlton in relation to the posting of the letter to Mrs Wakim, would not establish that the letter dated 16 February 1995 was in fact sent to her. This creates the extraordinary situation where a senior executive of the Respondent, Mr Rusbatch, states on oath that a letter was sent by the Respondent to Mrs Wakim on 16 February 1995 but subsequently in evidence qualifies that evidence, saying that he did not send the letter but he signed it. He attaches a copy of the letter to his statement. This, no doubt, was intended to establish that Mrs Wakim on 16 February 1995 had her performance reviewed by an executive director of the Respondent, when in fact the letter was never sent by another senior executive to whom the letter was given for despatch. The issue is compounded by the subsequent assertion of the Company Secretary to the Anti-Discrimination Board that the letter had been sent to Mrs Wakim and that it contained statements about her performance and the Respondent's concerns about her ability to perform her duties. Mrs Wakim was entitled to be taken aback when she received from the Anti-Discrimination Board a copy of Franklin Limited's letter of 28 July 1995 asserting that that letter had been sent to her. This episode is a parody of efficient management and administration by the Respondent and is justification for Mrs Wakim's claim of detriment that she has suffered as a result of the actions of the Respondent. In the view of the Tribunal the evidence of Mr Walton shows that he has not been frank with the Tribunal in relation to his knowledge and participation in the events giving rise to the preparation of the letter and, generally, this adversely affects the credit of his evidence to the Tribunal. In early March, that is about three weeks after the letter of 16 February 1995 was signed by Mr Rusbatch, Ms Andrade advised Mrs Wakim she was impressed with Mrs Wakim's February stocktake results. At the same meeting, Ms Andrade advised Mrs Wakim that Mr Walton required Mrs Wakim to extend her responsibilities by making sure that milk and coffee is available in the tearoom, that she collects the internal mail and that she make sure the general office is clean and tidy and to instruct those who want to use the fax machine or the photocopier. On 31 March 1995 Mrs Wakim received a copy of a memorandum from the Accounting Manager at head office which is addressed to all State Administration Managers and market invoice clerks as well as head office accounting personnel. The memo relates to the store procedures manual and month end processing. Ms Andrade also received a copy of this memorandum. The memorandum discusses the time spent by the head office accounting team fixing inaccuracies in information provided to them and stressing the need for integrity and timeliness in the accounting results. The memo stressed the need to adhere to the store procedures manual and to follow the month end timetable strictly. The Respondent was experiencing difficulties generally in its financial administration and the problem was not confined to the Marrickville store or to Mrs Wakim. Within a couple of days Ms Andrade reminds Mrs Wakim of the need to chase the Team Leaders in order to get their figures because the month end results have to be finalised. On 4 April 1995 Ms Andrade asks Mrs Wakim how the results are coming and Mrs Wakim replies that it is not ready and that some of the figures are still out. She showed Ms Andrade her draft month end results. Ms Andrade stated, "Send them off". Mrs Wakim stated, "I can't. I don't balance in three departments." Ms Andrade said, "It doesn't matter. It will at least give Melinda Jackson a start". Mrs Wakim responded, "No. I'm not happy with it. I don't want to send them yet." Ms Andrade replied, "Well, send what you have got. At least that will give Melinda a head start." Mrs Wakim then sent to head office copies of the five department figures, of which at that stage, two were complete and three were incomplete. Mrs Wakim says she was very concerned about doing this and she sent in a covering fax for head office to contact her to discuss the situation. It transpires that there was a misunderstanding with the instructions from Ms Andrade. Ms Andrade said that she intended Mrs Wakim only send the completed figures for the two departments and not the incomplete figures for the other three departments. Mrs Wakim took Ms Andrade's instructions literally and sent off the figures for the five departments. This occurred on 4 April. Mrs Wakim described in detail the steps that she took prior to send the information to head office, over the preceding three days, and to get accurate figures from the various departments to enable her to complete the balances within the permitted tolerance of 0.5 per cent. On 3 April 1995 Mrs Wakim detected a discrepancy in the meat department figures and she advised head office of the discrepancy. On 5 or 6 April 1995 Ms Andrade states that Mr Walton came to her and said that he had just had a call from Melinda Jackson at head office and she reports that Mrs Wakim had made a mistake in her calculations. Mr Walton says "It is time that we had another formal meeting with her about her performance." Mr Walton then dictated to Ms Andrade a formal warning to be given to Mrs Wakim. This document which is headed "Warning or Counselling" is on a printed form. In this case it is stated to be warning number two, the first warning is said to be the document referred to earlier as a counselling note. Warning number two is signed by Mr Walton and Ms Andrade. It states: "We have spoken to Bridget regarding her performance as an invoice clerk at Franklins Big Fresh Marrickville. Our main concern is Bridget's performance in her job, in particular the end of month stocktake. This concern was also brought to our attention by the accounts department at support office." The notice then goes on to state that Mrs Wakim has failed to meet the requirements of the support office in that she has failed to meet the deadline of sending all gross profit results to support office by Tuesday evening "and also achieving a GP result in agreement with the Team Leaders by the standard range of 0.50 in three departments (see sheet attached)". Then it goes on to state that it has been explained to Mrs Wakim that the end of month accuracy and timing is a crucial part of the market's functions and that this will jeopardise her position as an invoice clerk. It then states the concerns that Mrs Wakim's attitude towards her work is too casual and she does not chase discrepancies, for example, she failed to detect a $3,000 discrepancy in meat stocktake and when she was notified of such a discrepancy she did not show much interest. On 7 April Mrs Wakim was called to a meeting with Mr Walton and Ms Andrade. Mr Walton commenced the meeting by reading out the warning document. Mrs Wakim interrupted the reading of the notice and said, "I do not accept this. I will fight and argue all these points, because you and I both know damn well that it's not true. The reason I was delayed with my stocktake was because I had nothing from the Team Leaders Monday or Tuesday. So how can you say it's my fault." Ms Andrade states that Mr Walton said, "We are going to stick by this." Mrs Wakim defends her position by stressing the lack of support from the Team Leaders who were not supplying her with closing balances. She was advised that she should have chased the Team Leaders, but Mrs Wakim points out that the Team Leaders were not available and when she did contact them they did not have their figures finished. Mr Walton said, "Well, we would have let it go, but we had a call from Melinda Jackson stressing her concern about a $3,000 discrepancy which you didn't notice." Mrs Wakim pointed out that she told Melinda Jackson about the discrepancy. Mr Walton then said, "Well, look at your results, you're out on three departments, and you are too casual with your attitude towards your job." Mrs Wakim strongly objected and pointed out that Mr Walton knew why she was late and that he knew that she was not happy with her first stocktake results but that she had sent them at the request of Ms Andrade. Mrs Wakim then pointed out that in the interim she had finalised all her stocktake figures and that she had sent them to head office. Mr Walton then said, "Well that's beside the point. We are going to stick to this. Why do you want to stay in this position?" Mrs Wakim said that she wanted to stay because she liked the job. Mr Walton then said, "Well nothing is going to change. Why stay in this position with the stress that comes with it?" Mrs Wakim stated, "I can take whatever you are going to dish out to me." Mr Walton then terminated the meeting. In cross-examination Ms Andrade agreed that it was unjust to criticise Mrs Wakim for situations that were beyond her control, such as the refusal of the Team Leaders to give her figures and balances within the required time limit. She also acknowledged the misunderstanding about sending in to head office the incomplete balanced figures. Ms Andrade also acknowledged that the warning given to Mrs Wakim was the only warning given to an employee by her whilst Ms Andrade has been employed at the Marrickville store. Having regard to the evidence of this warning notice and the circumstances leading to it, the Tribunal considers that the giving of the warning notice to Mrs Wakim was unreasonable and not justified. It was the culmination of the attitude that had been built up by management at the Marrickville store and at head office of the Respondent that Mrs Wakim was a poor performer and that she was a troublemaker and should either be dismissed or moved to a lesser role such as a checkout clerk at another store. Mr Walton had taken every opportunity to bring pressure on Mrs Wakim to resign or to move elsewhere. There is evidence that the performance of invoice clerks in other stores in the early stages of their job was producing inaccuracies and delays and that these problems were not confined to Mrs Wakim. There was a constant pressure at Marrickville store to find fault with Mrs Wakim and to insist on better performance. There does not seem to have been any real attempt to help her or to support her in the problems she was having with Team Leaders in supplying her with their figures on time and in accordance with the procedures manual. In this context, the abortive attempt by head office, with the knowledge of Mr Walton, in February 1995, to issue to Mrs Wakim the most formal and carefully worded warning, has particular significance. Despite the representations to the Anti-Discrimination Board and to this Tribunal, that that letter had been sent to Mrs Wakim, the Tribunal has found that the letter was not sent. This is an extraordinary state of affairs and reflects badly on the Respondent's administration but in the view of the Tribunal it illustrates the length to which the Respondent was prepared to take the pressure that it wanted to exert on Mrs Wakim. This unjustified and unreasonable pressure, in the view of the Tribunal, is a detriment which Mrs Wakim has suffered within the meaning of section 50 of the Act. This pressure has been manifest in the stress and humiliation suffered by Mrs Wakim which has caused her to seek and obtain psychiatric and psychological help. In the opinion of the Tribunal, the Complainant has established that the Respondent, through its management and staff, subjected the Complainant to a detriment and that the acts giving rise to that detriment were causally connected with, and therefore on the ground that, Mrs Wakim had alleged on 7 December 1994 to senior managers of the Respondent, that the Respondent had discriminated against her, in contravention of the Act. Under section 53(1) of the Act, the Respondent, in the circumstances of this complaint, is liable for the acts of its employees. No evidence has been presented to the Tribunal which would demonstrate that the Respondent did not authorise the acts constituting the unlawful detriment sufferend by Mrs Wakim. Assessment of Compensation The presentation to the Tribunal of the medical evidence supporting the medical treatment received by Mrs Wakim was in the form of written reports from a psychiatrist and from a psychologist. The Tribunal is satisfied that those medical reports establish that Mrs Wakim has received treatment from a psychologist for insomnia, tension headaches, inability to cope, acute reactive depression, high level of stress, suicidal tendencies and loss of libido. She currently suffers from acute reactive depression and a high level of stress. This has contributed to her difficulties in coping with her duties as a wife and mother. It is stated that Mrs Wakim will require further long term psychotherapy treatment and counselling at an estimated future cost of $8,000. No details were given as to how the figure of $8,000 was calculated. The total cost of the psychological treatment to date is $1,260. A report from a psychiatrist dated 11 March 1996 states that an examination of her mental state shows there is no evidence of psychosis nor of any organic brain syndrome and that she is visibly angry rather than depressed and there was no evidence of psychomotor retardation or acceleration. Neither the psychologist nor the psychiatrist gave evidence. This followed a concession by the Respondent's counsel that he did not dispute the prognosis of the medical evidence but did dispute that Mrs Wakim's condition was attributable to the history of her experiences with the Respondent. In the absence of other evidence from the medical officers, it is difficult for the Tribunal to come to a firm conclusion as to the attribution of the medical complaints to her adverse experience during her employment with the Respondent, and in particular since she made her allegations of racial discrimination on 7 December 1994. Mr Sayed Wakim, the husband of the Complainant, stated that he noticed a change in Mrs Wakim soon after she started her period of training at Franklins Leichhardt store. He stated that his wife became more stressful once she started at the Marrickville store and it was particularly noticeable at the time of the making of the complaint on 7 December 1994. Some of the witnesses who worked more closely with Mrs Wakim also commented on their observation of the deterioration in her state of anxiety and stress during this period. After taking account of the medical reports and the observations of the witnesses in the context of the detrimental conduct to which Mrs Wakim was subjected and the temporal connection between that conduct and the deterioration in her marital condition, the Tribunal is satisfied that the deterioration in Mrs Wakim's mental condition is attributal to that conduct. For the Tribunal to be able to make an adequate assessment of Mrs Wakim's medical prognosis and the probable cost of treatment, more detailed evidence than has been presented to it would be required. No evidence has been given of the costs of the treatment by the psychiatrist. Mrs Wakim did not refer to any further consultations with the psychiatrist following his report in January 1996. The Tribunal is therefore unable to specify any amount that could be paid to Mrs Wakim by way of compensation for future psychiatric treatment. The evidence of the psychologist's treatment is more detailed. The Tribunal is not satisfied that the general sweeping estimate of the cost of future treatment of $8,000 can be relied on as an appropriate estimate of future cost or the extent of the likely future treatment. The Tribunal would therefore award an amount in general damages such that it would have regard to the possibility of Mrs Wakim requiring and obtaining psychological treatment in the future. Having regard to the statements made by the psychologist, it would appear reasonable to expect that Mrs Wakim would require some continuation of her treatment. The statement from the psychologist shows that Mrs Wakim commenced treatment on 23 January 1996 and it shows the last treatment on 1 August 1996. The total amount charged for this treatment is $1,260. It appears that no charge has been made for telephone attendances, although an indication is given that this should be charged at a rate of $136 per hour. As no charge has been made it is not intended to have regard to the telephone attendance charges. Mrs Wakim seeks an order for the payment of damages to cover her loss of wages, on the basis that her terms of engagement with the Respondent cover the period of 32 hours per week and that from a date in January 1995 her hours were reduced at the insistence of Mr Walton to 25 hours per week. The evidence on behalf of the Respondent is that Mrs Wakim was engaged as a part-time invoice clerk for a period of 25 hours per week. The possibility that those hours might be extended to 32 hours per week was referred to but the Respondent is adamant that this was not the basis of her engagement. The Respondent points to the application form completed by Mrs Wakim and to the statement written on that form by Mr Corbett at the top righthand corner where it is provided for the number of hours to be worked, to be specified, at 25 hours per week and Mr Corbett stated that he completed that amount on the form at the last occasion of the interviews with Mrs Wakim. Mrs Wakim does not agree and states that Mr Corbett did not complete that part of the application form until the afternoon of 7 December 1994 at the time when he was completing Mrs Wakim's personnel file before sending it to head office for the meeting that evening at which Mrs Wakim made her complaint. The Tribunal has considered all the evidence of a number of the witnesses concerning the terms of her employment. The Tribunal is satisfied that Mrs Wakim was engaged for 25 hours per week, that on a temporary basis those hours were extended to 32 hours during the intense periods leading up to and immediately after the opening of the Marrickville store, but it was never intended that Mrs Wakim be engaged for a period of 32 hours per week, except in the event that her terms of engagement be altered by extending her duties. The Tribunal finds that Mrs Wakim has not suffered, as a consequence of the breach of section 50 of the Act, from any loss of special damages arising from loss of wages. Mrs Wakim also seeks an order from the Tribunal that the Respondent be required to apologise to her for the detriment she has suffered. The Tribunal has found that Mrs Wakim's claim of racial discrimination has not been substantiated. It has also found that Mrs Wakim's complaint of victimisation is substantiated. Mrs Wakim has stated that her working conditions have improved since Mr Walton left his position at Marrickville and Mr Hunter has become the marketing director of the Marrickville store on 7 January 1996. Within weeks of Mr Hunter taking control of the Marrickville store, a marked improvement occurred in the attitude of the Team Leaders and their attitude to their responsibility to complete their returns of invoices promptly to Mrs Wakim. Mrs Wakim remains in her position as invoice clerk at Marrickville. It is the view of the Tribunal that it would not be in the interests of either party in maintaining a stabilised working relationship to direct a written apology be made by the Respondent. Mrs Wakim, however, is entitled to an award of general damages to compensate her for the stress and hurt that she has suffered as a consequence of the victimisation to which she has been subjected by the Respondent. The psychiatric and psychological evidence supports Mrs Wakim's claim of the depth of the adverse consequences of this hurt and stress. It has been considerable and has affected adversely her life in her home, with her family, and in maintaining her position, in the face of considerable hostility, in her job with the Respondent. In awards of this nature the Tribunal assesses an amount of general damages on the same principles as damages are in claims of tort. Regard must be had to the legislative intent that with a ceiling on the amount to be awarded of $40,000, a relative amount should be assessed which relates to the degree of stress and hurt in the particular case against the most gross stress and hurt that could be suffered. A considerable degree of discretion is therefore available to the Tribunal in the task of making a fair and reasonable assessment which would provide adequate compensation in the particular case. In this case the Tribunal has had regard to the general nature of the medical evidence and to the statements by Mrs Wakim's husband and to her own description of the hurt and humiliation that she has felt. The Tribunal has also taken into account the possibility that Mrs Wakim may require further psychiatric and psychological assistance. In all these circumstances, the Tribunal would award by way of compensation an amount of $9,000 to be paid by the Respondent. In addition, the Tribunal would direct that the Respondent pay the medical expenses incurred by Mrs Wakim by Dr Mattar in the amount of $1,260. The total amount therefore to be paid by way of damages to the Complainant is $10,260. Cost Award As is often the experience in hearings before this Tribunal, the parties did not address on the question of costs and nor were they invited to do so by the Tribunal. The main reason was the process adopted, for the parties to make written submissions. There has been no opportunity therefore for the question of costs to be addressed. Having regard to the decisions made by the Tribunal, the Tribunal at this stage will leave open the question of an award of costs which under section 114 of the Act will not be made as a matter of course,but will be awarded only in a particular case where, in the opinion of the Tribunal, there are circumstances that justify it doing so. This is a case where the Complainant has been successful on one ground and unsuccessful on the other ground of her complaint. In the absence of submissions concerning costs, the Tribunal will reserve to the parties a period of 21 days after the date on which this decision is handed down, to make an application to the Tribunal for consideration of whether any, and if so, what order should be made in regard to the Complainant's costs. 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