Equal Opportunity Tribunal of New South Wales CITATION: K And N Cartwright -V- Hunter Region Developmental Disability Service [1997] NSWEOT COMPLAINANT: Kerrie and Noel Cartwright RESPONDENT: Hunter Region Developmental Disability Service NUMBER: 107-108 of 1995 Ms NarelleBell ( Judicial Member ) TRIBUNAL: Ms L Mooney Mr O MacDonald OAM GROUNDS OF COMPLAINT: Discrimination on the ground of marital status in the area of employment DATES OF HEARING: 03/03/1997; 03/04/1997; 03/05/1997; 03/06/1997 DATE OF JUDGMENT: 06/26/1997 Complainant: Self-Represented LEGAL REPRESENTATIVES: Respondent: Mr L McKay Crown Solicitor's Office (Solicitors) Ms C Ronalds (Counsel) JUDGMENT IN FAVOUR OF: On 20 October 1995 the President of the Anti-Discrimination Board referred to the Tribunal two complaints of discrimination on the ground of marital status from Mrs Kerry Cartwright and from Mr Noel Cartwright. The complaints are against the Hunter Region Developmental Disability Service under the umbrella of which the Stockton Centre, a centre for people with developmental disabilities, operates. The two separate complaints were heard together. It appears to the Tribunal that the primary complaint is that of Mrs Cartwright. Most of the evidence went to the allegations made by her and the complaint made by Mr Cartwright depends, to a large extent, on the assertions made by Mrs Cartwright in her complaint being proved. Mrs Cartwright noted in her complaint that she had been employed at the Stockton Centre for some fifteen years as Food Services Manager. She stated that she had, in about 1990, through a formal selection committee, recommended employment of her now husband, Mr Noel Cartwright, who was not at that time known to her, as a grade 2 Hospital Assistant. They began to see each Mrs Cartwright complained that, since their marriage, whenever a problem arose in the kitchen at the Stockton Centre, Management and staff of the Centre believed they arose because of she and her husband working together. In particular, Mrs Cartwright complained that on 8 October 1992 she attended a meeting with Ms Loraine Yudaeff, the Chief Executive Officer of the Stockton Centre and at this meeting Ms Yudaeff said to Mrs Cartwright "I believe the trouble in the kitchen is because you and Noel are married. Husband and wife should not work together and I should have done something about it 18 months ago when you were first married." Mrs Cartwright complained that she was then demoted from her position as food Services Manager and was allocated "special projects duties". She complained that she suffered harassment and eventually resigned under duress. Mr Cartwright complained that he too was affected by the alleged views of staff and Management. He complained that a co-worker had said "husband and wife should not work together". He stated that he has been excluded from employment opportunities and the Respondent has sought to prevent him from working with his wife. He also complained that he has been denied opportunities to do overtime. The Respondent answered the complaints by saying that the problem was Mrs Cartwright's shortcomings as a manager and her negative attitude to staff and management and that these difficulties had existed long before her marriage. The Respondent stated that this was compounded by her marriage to Mr Cartwright and that staff believed that she used her husband to spy on them, treated him as her deputy and showed him favouritism and that this threw relationships in the kitchen into chaos. According to the Respondent, it was this behaviour, on the part of Mrs Cartwright and Mr Cartwright, that prompted the meeting between the Chief Executive Officer on 8 October 1992 and an interview with Mr Cartwright on 9 October 1992 and subsequent steps taken by the Respondent. It is convenient at this point to consider the provisions of the Anti-Discrimination Act 1977 ("the Act") on which Mrs and Mr Cartwright based their complaints. Section 39 of the Act provides: s.39(1)A person discriminates against another person on the ground of his marital status if, on the ground of - a)his marital status; b)a characteristic that appertains generally to persons of his marital status; or c)a characteristic that is generally imputed to persons of his marital status, he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different marital status. 2)For the purpose of subsection (1), the circumstances in which a person treats or would treat another person of a different marital status are not materially different by reason of the fact that the persons between whom the discrimination occurs are not of the same sex. (3)A person discriminates against another person on the ground of his marital status if he requires the person discriminated against to comply with a requirement or condition - a) with which a substantially higher proportion of persons not of the same marital status as the person discriminated against comply or are able to comply; b)which is not reasonable having regard to the circumstances of the case; and c)with which the person discriminated against does not or is not able to comply. Counsel for the Complainants, who was present only for the purpose of making a submission to the Tribunal on the law relevant to this inquiry, drew the Tribunal's attention to the following statement, in reference to section 39 of the Act, by Justice Clarke in the Court of Appeal's decision in Waterhouse v Bell [(1991) 25 NSWLR 99]: "The inquiry for which the section calls is a factual one involving essentially, two separate questions. The first, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)?" In order for each of the Complainants to succeed in their claims the Tribunal must therefore find, at the very least, that there was, in the case of each complaint, less favourable treatment than that which was or would have been accorded to a person not of the complainant's marital status and that the treatment was grounded in the complainant's marital status. The Tribunal has had the benefit of Counsels' submissions on a number of particular issues which arise in any consideration of the above questions. In particular, the Tribunal heard Counsels' arguments as to the relevance and application of the Court of Appeal's decisions in Boehringer Ingelheim Pty Ltd v Reddrop ([1984] 2 NSWLR 13) and Waterhouse v Bell [(1991) 25 NSWLR 99]. The Tribunal will return to those submissions after it has considered some of the factual issues which must be resolved before it can attempt a conclusion on the questions of whether Mr and Mrs Cartwright were accorded "less favourable treatment" and, if so, whether that treatment was accorded "on the ground of" marital status. The following matters appear to be agreed by the parties. A meeting between Mrs Cartwright, Ms Yudaeff and Mr Flynn took place on 8 October 1992. On the same day Mrs Cartwright was removed from the kitchen and given a number of special projects to complete. Mr Cartwright remained in his position in the kitchen. A number of meetings with Mrs Cartwright and, sometimes, Mr Cartwright followed and in April 1993 Mr Tom Cunningham, a legally qualified retired officer of the former Public Service Board, was engaged to inquire into the situation and to make recommendations on its resolution. Mr Cunningham recommended, among other things, that Mrs Cartwright be returned to the kitchen on condition that certain practices and regulations be observed. Mrs Cartwright was returned to the kitchen and continued to work there, in unresolved circumstances, until 24 or 25 December 1993 at which time she took voluntary redundancy. An intervening event was the review of the provision of food services to the clients of the Hunter Region Developmental Disability Service. It was finally recommended that a new system for food preparation be introduced and this had an impact on the continuation of the position of Food Services Manager at the Stockton Centre. The above agreed facts leave unresolved a number of other factual issues. The Tribunal has attempted to isolate, as an initial step, the main issues of factual dispute as follows: ° what transpired at and after the meeting on 8 October 1992; ° when the decision to move Mrs Cartwright from the kitchen was made; ° whether Mrs Cartwright's management and people skills were a matter of ongoing concern to management; ° whether Mrs Cartwright was harassed, abused, and demoted; ° whether Mrs Cartwright was forced to take redundancy; ° what was the nature of Mr Cartwright's behaviour or role in the kitchen; and ° whether Mr Cartwright was excluded from employment opportunities, prevented from orking with his wife, denied opportunities to do overtime, and transferred out of the kitchen against his will. The Tribunal notes that it heard evidence of a large number of incidents, conversations and meetings of varying relevance to the issues in this inquiry. Not all of the evidence bears recital in this judgment. In relation to the meeting on 8 October 1992, Mrs Cartwright's evidence was that on the morning of 8 October 1992 she was called to the office of the Chief Executive Officer, Ms Lorraine Yudaeff to attend a meeting with Mr Flynn, Director of Administrative Services, also present. She said that there was a discussion about an urgent need to diffuse a situation in the Catering Department. She said that it was not explained to her what the allegations were. However, later in cross examination, she conceded that complaints made by staff were raised with her in the meeting and those complaiants included Mrs Cartwright discussing supervisory matters with Mr Cartwright instead of supervisory staff, Mr Cartwright purporting to give instructions to staff when he had no authority to do so and threats made to staff by Mrs Cartwright and Mr Cartwright were raised with her. She also conceded in cross examination that at the meeting she made some accusations about theft on the part of some kitchen staff and said that she had some information on them. She said she did this in order to clarify matters. She also said that Ms Yudaeff stated that "she believed husband and wife should not work together" and that "she should have done something about it some eighteen months earlier when (Mr and Mrs Cartwright) were first married". Mrs Cartwright said that Ms Yudaeff and Mr Flynn stated an intention to remove Mr Cartwright from the kitchen and she replied that to do so would mean that Mr Cartwright would be disadvantaged financially and it would be a signal to the kitchen staff that they had control of the kitchen instead of Mrs Cartwright. The Respondent tendered as evidence a record of the meeting on 8 October 1992 made by Mr Flynn. That record details the matters put to Mrs Cartwright. It also notes her response to those matters, that is, that staff were involved in theft and that she and Noel "had a lot on them" and that they were taking legal advice. Mrs Cartwright accepted the document as an accurate record of these matters The document also notes that after the meeting, when Mrs Cartwright returned to the kitchen, she, according to staff members, made threats of legal action to staff members and general threats that if they "went a lot of staff would go with them". Mr Flynn's evidence was that: "I did not hear Ms Yudaeff state that she believed husbands and wives should not work together or that she should have done something about it some eighteen months earlier. I would have remembered such statements if they had been made as I would have found them so extraordinary as they were not the issue which was ever discussed by myself with any other manager at the Centre. The only time that issue was discussed was when either or both Mrs and Mr Cartwright raised it and made allegations about others on the staff." Ms Yudaeff similarly denied having made the statement. She said: "It was irrelevant to me whether or not Mrs Cartwright was married or to whom she was married. My view as CEO was that the issue was not her marital status but the on-going problems between Mrs Cartwright and staff within the catering department which stemmed from the conduct of Mrs Cartwright which preceded her marriage to Mr Noel Cartwright. Following the meeting on 8 October 1992, I was informed that Mrs Cartwright had returned to the kitchen and made threats of legal action against kitchen staff and general threats that if they (Mr and Mrs Cartwright) "went, a lot of the staff would go with them". Following the meeting and the threats immediately made by Mrs Cartwright against kitchen staff, I formed the view that the removal of Mrs Cartwright from the kitchen area was the only way in which I considered that management could properly act so as to defuse an extremely volatile situation. There was the real possibility of the kitchen staff going on strike due to the scale of the conflict and my overriding concern was to ensure the continued viability of the food production service to our clients." In cross examination Mrs Cartwright conceded that she made those comments to one person on staff on her return to the kitchen after the 8 October meeting, but did not agree she had made a threat of legal action. The Tribunal notes, however, and Mrs Cartwright agreed, that she and Mr Cartwright caused letters to be sent by her solicitor dated 13 October 1992 to the Stockton Centre and to two of her staff, threatening defamation and other proceedings. The Tribunal is satisfied, after consideration of the above evidence, that at the meeting on 8 October 1992, complaints about Mrs Cartwright's conduct were put to her as outlined in Mr Flynn's memorandum and that Mrs Cartwright responded with allegations of theft against kitchen staff and threats that she "had a lot on them". The Tribunal does not accept that Ms Yudaeff at the meeting said the words "husband and wife should not work together" and that she "should have done something about it some eighteen months earlier when (Mr and Mrs Cartwright) were first married". The Tribunal is mindful of Ms Yudaeff's experience as a Chief Executive Officer and notes that Mr Flynn's record of the meeting does make some mention of "difficulties posed by the fact that (Mrs Cartwright's) husband, Noel, was working in the kitchen with her". It seems that the matter was mentioned but not raised as an issue in principle and may have been interpreted by Mrs Cartwright as the main concern. This view is supported by the further evidence of Ms Yudaeff of an informal discussion with Mrs Cartwright before 8 October 1992 in which she said: " 'Kerrie, things are pretty rocky over there at the moment' and you told me how much difficulty you were having getting used to being married, okay, because you suddenly had to do all the housework that you never had to do before. And then you said something about you being accused of treating Noel as a favourite and I said to you - and I think this is the basis of what you believe I said - I said to you something like, 'Kerrie, you're in a very difficult situation. In your situation at the moment you not only have to be excruciatingly fair, you have to be seen to be'." The Tribunal is also satisfied that immediately after the meeting on 8 October, Mrs Cartwright returned to the kitchen and threatened at least one person that if Mr and Mrs Cartwright were to go "others would go with them". Mrs Cartwright has disputed making threats of legal action at that time but it is not in dispute that she and Mr Cartwright soon after caused solicitor's letters to be sent to two staff members threatening legal proceedings. On the question of when it was decided to remove Mrs Cartwright from the kitchen, both Mr Flynn and Ms Yudaeff gave evidence of having made that decision after they had learned of Mrs Cartwright's conduct on her return to the kitchen after the meeting. Mr Flynn said that as far as he was concerned, the decision was made "having regard to Kerrie Cartwright's behaviour both at the interview (on 8 October) and subsequently". He stated his major concern at this time as being the possibility of an industrial dispute with the other kitchen staff and a disruption of food production. Ms Yudaeff also indicated that she had regard to the meeting and to the threats made to staff by Mrs Cartwright and that she was concerned about the possibility of a strike. Mrs Cartwright, although in no position to divine when management had made its decision, stated that she now believed that the decision to move her had been made after her return to the kitchen but that at the time she considered that a decision had been made at the meeting and so she set about packing up her office. She remained of the view, however, that the decision was made because management considered that husbands and wives should not work together. The Tribunal is satisfied that the decision to remove Mrs Cartwright from the kitchen was made after she made threats to the staff on her return to the kitchen after the meeting. The Tribunal is also satisfied that the decision was made largely on the basis of Mrs Cartwright's behaviour at the meeting and her conduct on her return to the kitchen. The Tribunal notes that no directive to move had been given to Mrs Cartwright at the meeting. The consistency of Mr Flynn's and Ms Yudaeff's evidence and its accordance with the note prepared by Mr Flynn has persuaded the Tribunal that no decision was made until Ms Yudaeff and Mr Flynn heard of Mrs Cartwright's actions after the meeting. Another major factual issue that arose is whether Mrs Cartwright's management and people skills were a matter of ongoing concern to management. The Respondent gave evidence of a documented history of concern over Mrs Cartwright's performance as Food Services Manager during the period 1981 to 1986. The nature of the concerns about Mrs Cartwright's performance during 1985 and 1986, in particular, was so severe as to prompt Mr Lovell, Manager General Services of the Stockton Centre, to recommend her dismissal from her position. This recommendation was not acted upon by the Regional Office of the then Health Department. The concerns went to Mrs Cartwright's administrative and budgetary skills, her treatment of staff and her management skills generally. These documented concerns were not in dispute. However, Mrs Cartwright was firmly of the view that her "immaturity" during that period was remedied and she had performed well thereafter. She pointed to the absence of documentation in relation to management concerns and invited the Tribunal to conclude that no such concerns existed from 1987 to 1991 or 1992. Ms Yudaeff's evidence in this respect was that before she began as Chief Executive officer of the Stockton Centre in 1989, she had heard at the Department's Regional Office, where she worked, that there were ongoing problems with Mrs Cartwright's (then Ms Convery's) performance. She said that when she commenced as Chief Executive Officer she reviewed the relevant files and decided to try and work with Mrs Cartwright to overcome ongoing problems. She said: "It became apparent to me some time after my commencement that there were further difficulties and problems arising. I spent considerable time with Ms Convery attempting to understand her perceptions in order to overcome the problems. From the beginning, the difficulties centred on Ms Convery her work performance and management of staff. More than in any other work area I was consulted and heard complaints and even attended the kitchen several times because of conflicts between Ms Kerrie Convery and staff of the catering department and others." After mentioning the frequency with which she raised work problems with Mrs Cartwright, Ms Yudaeff said: ° "A.Generally it was because of some complaint I'd received from or otherwise mutterings about goings on in the kitchen and unhappiness there. ° Q.Were they solely sourced from the kitchen or from other places? ° A.No, no, it wasn't just a kitchen problem. I used to get lots of complaints from the nursing managers about Kerrie's inflexibility with the clients' diets. I used to get complaints from my secretary almost constantly about difficulties in getting Kerrie to change the dates of luncheons, morning teas and things like that. I used to get complaints from the nursing executive too, so it was a centre wide problem really." Mr Lovell's evidence was that he had had numerous occasions on which he had to counsel Mrs Cartwright after 1986. He said: "Prior to her removal from the kitchen there had been a series of incidents involving Kerrie Cartwright which gave rise to consideration of disciplinary action. One such incident on 27 March 1992 involved the discovery by me of a dog and pups belonging to Kerrie Cartwright in a cage situated in a storeroom adjacent to kitchen's (sic) loading dock. I became aware that the animals had been there for several days. This area was in close proximity to a large food preparation area where thousands of meals were prepared. I considered this a flagrant breach of Section 32 of the Pure Food Act and that the person in charge of this area should have been sufficiently familiar with such requirements to never commit such a breach. On 10 April 1992, Mr Flynn issued a severe reprimand to Mrs Cartwright over this incident." In answer to a question from the tribunal, Mr Lovell said that in the period from 1986 to 1992 there had been a "continual procession of complaints from staff that they were being unfairly treated and this referred to Mrs Strowthger, Mr Neist, Mr Holland and they just continued, unfortunately I haven't documented them, but they were constant and they were ongoing." Mr Flynn gave evidence of an occasion in 1989 when Mrs Cartwright was the chair of a selection committee for the appointment of a cook and a certain person was told by Mrs Cartwright that he would be successful in his application. The person was not selected for the position and the union became involved in the matter. He also gave evidence of an ongoing dispute between Mrs Cartwright and the first cook in the kitchen, Mr Bennet. Mr Flynn said that this dispute was the subject of discussions with him throughout 1988 and 1989 and that Mrs Cartwright failed to make use of Mr Bonnet's particular skills. He said that a similar situation, in which he was required to intervene, existed in relation to Mr Hall and Mr Neist and persisted throughout their employment. He also said that he was involved during this period in discussions with Mrs Cartwright about unbalanced roster arrangements for Mrs Strowthger. In disputing the Respondent's assertion that Mrs Cartwright's management skills were a matter of concern, Mrs Cartwright cited an award of merit she received in 1991. She also referred to a positive mention made of her by the Chief Executive Officer in a Stockton Centre publication called "On the Move" dated 9 October 1992. Mrs Yudaeff gave evidence that she had no recollection of the award of merit but suggested that it may have been for the work the kitchen had done or that Mrs Cartwright may have been nominated by someone. Ms Yudaeff said that the awards were part of the Centre's Foundation Day celebrations. It is apparent from the document on which the award is noted that some twenty three people were in receipt of the award in 1991. In relation to the mention of Mrs Cartwright in the Centre publication, Ms Yudaeff said that the publication is a newsletter and a motivational publication written by Ms Yudaeff and used to celebrate people's achievements. She said that it would have been written up to three weeks before its publication. She said that she was very pleased with Mrs Cartwright over the issue involved. Mrs Cartwright also referred to the regrading of her position in 1989 and her subsequent reappointment to the regraded position, in support of her argument that there was no longer concern about her performance by this time. Mr Lovell gave evidence of having advised Mrs Yudaeff at the time to advertise the position externally, when all other regraded positions were being advertised only internally. He said that he was prompted to give this advice because of "doubts as to her (Mrs Cartwright's) adequate performance". Mrs Yudaeff gave the following evidence: "I was brand new in 1989. I had considerable reformist's zeal, I truly thought I could change the situation in the kitchen around and against advice and on my own better judgement, I really thought that it would be a negative thing to re advertise the position because I was getting on quite well with Kerrie, I had confidence that we could make it work and I really didn't think that readvertising we would get many other applicants anyway. So against advice, I appointed her to the position." The Tribunal is satisfied that, although instances of concern over Mrs Cartwright's performance were not generally documented by management after 1986, the concern persisted throughout Mrs Cartwright's employment. Again, the Tribunal is persuaded by the consistency of the evidence given by the Stockton Centre's executives. Mrs Cartwright complained of a number of instances of harassment and abuse in the form of swearing by managers, being ignored by staff and being subject to aggressive behaviour in addition to being demoted by being removed from the kitchen and forced into taking redundancy. In particular she gave evidence of the following instances: ° she was demoted from her position in the kitchen and given few duties; ° she was accommodated, when removed from the kitchen, first in the Centre's nurses' home which had no facilities, was cold and isolated and made her ill. She was then moved to a walkway in the Housekeeping building and was ultimately accommodated in the converted garbage room at the back of the kitchen; ° on a number of occasions she was sworn at and verbally abused by Mr Lovell and Mr Flynn; ° she was verbally abused by Mr Cunningham who punched a locker when speaking to her; ° she was humiliated and harassed by members of her staff, Mr Neist and Mr Holland - in particular Mr Holland attempted to strike her with his car door as she walked past on one occasion; and ° She was made to take redundancy under duress. Under cross examination, Mrs Cartwright conceded that she had not been demoted and that the special duties she had been given fell within her statement of duties. She also conceded that the work she was given to do was challenging and that apart from a three week period in late October/early November she was fully occupied. It is common ground that she was returned to the kitchen in about May 1993 on the recommendation of Mr Cunningham. On this basis the Tribunal cannot find that Mrs Cartwright was demoted and given few duties. On the question of Mrs Cartwright's accommodation, the evidence of the Respondent suggests that her descriptions of her accommodation after her removal from the kitchen were exaggerated. The Respondent tendered the relevant floor plans and it was Mr Lovell's evidence that the room allocated to Mrs Cartwright in the nurses' home was not isolated, it being situated in a building in which some twenty nurses resided and being adjacent to a conference centre which was in fairly regular use. In addition, he said, by reference to the floor plans, that there is a PABX system telephone situated about 2 metres from the desk which was occupied by Mrs Cartwright. In relation to the office to which Mrs Cartwright was moved after she complained of the cold in her office in the nurses home, Mr Lovell's evidence was that this accommodation was in a cottage which had formerly been the manager's office. It is now used as the Housekeeping department's headquarters. According to Mr Lovell and by reference to a floor plan, the room's dimensions are 4.28 by 2.7 metres with a corridor across it. The residual area after taking away the space taken by the corridor was just under 3 metres by 2.7 metres. Mr Lovell said, referring to the floor plans which were tendered: "I can't recall exactly the position of the desk. Certainly it wasn't in the corridor. Also in that sketch there's the WC which is at the rear of the building adjacent to that office, is the toilet which has been spoken about as being adjacent to that office. We also see that the main bathroom and toilet area was further towards the centre of the cottage and this was the bathroom and toilet which was used primarily by the staff." In relation to the room in which Mrs Cartwright was accommodated when she returned to the kitchen, another floor plan was tendered and Mr Lovell's evidence was as follows: "The colour green is the area that Mrs Cartwright has referred to as the garbage room, and you'll note on that sketch that's in fact what it is referred to. It was used for some time as a garbage area. That practice ceased during the mid to late 1980's when because of the problems with hygiene with the garbage being stored in that area so close to the operations of the kitchen that arrangements were made for a Cleanaway bin to be used away from the building. That room then became surplus. That is the room that Mrs Cartwright moved to and this was certainly negotiated with her during that process. The room which is highlighted in pink, marked 'office' is the former food services manager's area ... there had been a drain in the room which was covered ... the old storage areas were removed. I think the room may have been In answer to questions from the Tribunal Mr Lovell conceded that the window to the room was "...The move was fully negotiated with Mrs Cartwright and there was no problem advanced at that time which indicated that this accommodation was less than adequate or satisfactory, and in fact the office continued to be used after Mrs Cartwright left, and only ceased operation when, with the introduction of cook chill the supervisory staff were reduced from two to one, and the food services manager was moved back to that original area. At the time Mrs Cartwright occupied that area there was a deputy food services manager employed whose role centred around the daily production needs of the operation and it was felt appropriate that that person should be situated in the office which closely, worked closely with the actual production area." The Tribunal is satisfied that while any move from accommodation to which one is accustomed may produce some degree of stress and discomfort and that there was in fact, on the basis of Mrs Cartwright's evidence, some distress for Mrs Cartwright in the changes which were made to her accommodation, her account of her conditions was exaggerated. The Tribunal finds that her accommodation in the nurses home was not isolated, her office in the housekeeping department's headquarters was not merely a walkway and the "garbage room" in which she was accommodated after her return to the kitchen had in fact not been used as such for some time and, while less than perfect, was by no means a "garbage room". The Tribunal accepts, however, that the move was unwelcome to Mrs Cartwright and caused her some distress. Mrs Cartwright also gave evidence that on a number of occasions she was sworn at and verbally abused by Mr Lovell and Mr Flynn. Both Mr Lovell and Mr Flynn denied having done so. The Tribunal notes that Mrs Cartwright agreed in cross examination that her diary for the relevant period, although being intended as a detailed record of events, did not make mention of this alleged verbal abuse or swearing. The tribunal cannot be satisfied, in the face of Mr Flynn's and Mr Lovell's denials and the absence of diary notes, that this verbal abuse occurred. As to Mr Cunningham's treatment of Mrs Cartwright, he gave evidence that he did not recall yelling at her or punching a locker as she alleged. Mr Flynn, who was present at the time, said that he did recall Mr Cunningham leaning on a locker and banging his hand down on it to make a point. He did not recall Mr Cunningham being angry. The Tribunal considers it most unlikely that Mr Cunningham, who had been contracted from outside the Stockton Centre and ,indeed, from outside the public service, had anything to be angry about. While the Tribunal can appreciate that Mrs Cartwright felt some anxiety about the meeting with Mr Cunningham, it does not find, in view of his and Mr Flynn's evidence, that he acted in an angry manner or in a manner designed to intimidate. Mrs Cartwright's evidence was that her staff, and Mr Neist and Mr Holland in particular, had harassed her. The two instances she gave evidence of were one of Mr Neist answering the telephone in the kitchen when she was working outside the kitchen and laughing at her in a mocking manner and another of Mr Holland attempting to strike her with his car door as she was walking past. Diary notes tendered by her recorded these incidents. Mrs Cartwright also complained of Mr Neist and Mr Holland ignoring her. Mr Neist and Mr Holland denied these incidents. Mr Neist's evidence was that he had never had very much to do with Mrs Cartwright because she was very difficult to get along with and at the time of his alleged conduct he was answerable to another officer and took orders from him. Mr Holland simply denied ever having struck Mrs Cartwright with a car door. The Tribunal cannot be satisfied that Mrs Cartwright was harassed by staff. The Tribunal finds that, if anything, some staff sought to avoid Mrs Cartwright whom they considered to be difficult to get along with. It is possible that Mrs Cartwright had developed something of a siege mentality by this time and interpreted minor actions and comments negatively. However this does not ground a finding of behaviour of the type alleged by Mrs Cartwright. Mrs Cartwright claimed that she was forced to take redundancy under duress. Under cross examination Mrs Cartwright agreed that the redundancy offered to her had been proper and that it had been taken by her voluntarily. However, she maintained that she had accepted it because of the stress she felt at work and on her doctor's advice. Mr Lovell's evidence was that the redundancy came about when a review of the food services production was undertaken and a decision made that a new system of production would be introduced necessitating the production of some 3,500 meals per day over 5 days instead of the old number of 1,200 meals per day over 7 days. He stated that the review recommended the replacement of the two positions of Food Services Manager and Deputy Food Services Manager with one central position of Food Services Manager. Mr Flynn's evidence when asked about the difference between the old and the new Food Services Manager's jobs said: "Certainly there are differences. In planning the switch to cook-chill the idea was to close two other kitchens and so really produce the meals from the one kitchen that had previously produced from three kitchens and catering for about another 400-odd clients or 400-odd customers. So there was certainly, you know, getting towards nearly doubling the output from the kitchen. But apart from that I think the extreme change was a major technological change or the change to a complete new cooking method which would require somebody who had the ability or the skills to get others in the kitchen to embrace it and then of course to sell it to some 730-odd customers. So certainly there were major differences in the expectations for the two jobs." Mr Lovell gave evidence that at the time of the offer of redundancy Mrs Cartwright had the options of remaining employed and competing for the position when it was advertised and if she had done so and been unsuccessful she would have been able to continue in employment, albeit at a lower scale. The Tribunal is satisfied that the redundancy offered to Mrs Cartwright was a genuine one brought about by a process of change unrelated to her own difficulties. The Tribunal accepts that Mrs Cartwright's feelings of stress contributed to her decision to accept the redundancy offer but the Tribunal does not accept that she was forced or placed under duress to accept the redundancy. Another major factual issue is the nature of Mr Cartwright's behaviour or role in the kitchen. All Executives of the Stockton Centre who gave evidence reported a range of complaints by staff about Mr Cartwright attempting to act as Mrs Cartwright's deputy and trying to give orders to other staff. In particular Mr Lovell gave evidence of an altercation between Mr Cartwright and Mr Hall in which Mr Cartwright telephoned Mr Hall at his home out of working hours and later visited him about a disagreement Mr Hall and Mrs Cartwright had had at work. Mr Cartwright agreed that he had done so and that he had involved himself in the matter inappropriately. Unfortunately Mr Hall was not available to give evidence of this incident but he had reported it immediately to Mr Lovell as evidenced by a record of the incident prepared by Mr Lovell. There is some dispute about whether Mr Cartwright's behaviour on this occasion was threatening to Mr Hall, but Mr Cartwright conceded that his behaviour was inappropriate. Mr Holland gave evidence of Mr Cartwright regularly attempting to "rule the roost" in the kitchen by virtue of his relationship with Mrs Cartwright. He said: "He would try and order me about and tell me how to do my job and what duties to do next. This was not his job as he had no control over my work. I did not believe he should be doing this. I heard him order other people around also. I heard him speak to myself and other staff members with a loud, raised voice if I or other staff did not do what he had been telling us to do. As he had no right to order me around and tell me what to do, I did not do what he said. Then he would go and see Mrs Cartwright. I did not hear what he said but she would then come and tell me to do the same thing he had previously said. ... It seemed to me that he told her everything which went on in the kitchen when they were away from work and then she would act on it. On many occasions I saw or heard both Mr and Mrs Cartwright treating kitchen staff badly in the way they spoke to them and the things they said." Mr Holland also gave evidence of an incident in which Mr Cartwright purported to chastise him for having left him to wash the floor when he had been absent because he had been requested by the First Cook to get the pay dockets. He said Mr Cartwright said to him "Come outside" which he interpreted as a threat of violence. He said Mrs Cartwright then appeared and said "Stop it, Noel" and Mr Cartwright then backed away from Mr Holland. Mr Cartwright denied having said this and gave evidence of Mr Holland having told him to "shut your mouth" to which he replied "shut it for me". Mr Cartwright conceded that he had asked Mr Holland to help him with the floor and that Mrs Cartwright had had to intervene and tell him to stop. Mrs Cartwright, however, had written to Mr Flynn on 8 July 1993 reporting the incident as one in which Mr Holland had failed to do the work required of him and Mr Cartwright had told him to "get on with his normal work and stop bludging". In her letter she described the incident as one which may have turned into a brawl and conceded that Mr Cartwright had been "out of line". She also said in her letter that the incident was "between two people working together and one not doing his fair share, with the other losing his temper and telling him so". She blamed the incident on the failure of her senior staff to address what she saw as a problem of one staff member failing to pull his weight. Mr Halliday, another member of the kitchen staff gave evidence that: "Noel would sometimes be very angry. I knew he had threatened other people, including Steven Holland, with violence if he thought the person had insulted Kerrie or caused her any problems." Mr Neist gave the following evidence of Mr Cartwright's role in the kitchen: "I understand that the 'trouble' he (Mr Cartwright) is referring to was an attempt by both staff and management to deal with the problems arising from the way in which Mrs Cartwright managed staff within the catering department. These problems existed prior to the employment of Mr Cartwright and to the Cartwrights' marriage, but became worse when Mr and Mrs Cartwright entered into a personal relationship and married. Mr Cartwright attempted to assume authority over other staff members by virtue of his marriage to the manager of the catering department. He tried to tell me how to do things. In my understanding of the work arrangements we all had, he had no authority or power over me or any other member of staff. I believed that he was trying to use his wife's power and make himself more powerful in comparison with the other staff." Staff of the kitchen who gave evidence also testified to favouritism in the allocation of higher duties afforded to Mr Cartwright by Mrs Cartwright. Evidence was given by Mr Halliday and Mr Neist that Mr Cartwright was given higher duties as a cook above others who had more experience in the area. Mr Halliday gave evidence of having complained about the practice of giving higher duties to unqualified people generally and that Mr Neist was also one of those he objected to being given higher duties. However he said that whereas he discussed his intention to complain about this matter with Mr Neist, he did not discuss it with Mr Cartwright. He later said that Mr Cartwright was getting a lot more relieving work than a lot of other people there. The documents tendered as evidence by the Respondent included a schedule of hours of higher duties worked by Mr Cartwright and by Mr Neist over the 1992/93 financial year. The schedule is of limited value, given that it deals only with a comparison between Mr Cartwright and Mr Neist. The total hours worked by Mr Neist in the 92/93 financial year are 858. The schedule shows that Mr Cartwright worked 331.5 hours in the same period. In particular, the schedule shows that in the period up until January 1993 Mr Cartwright worked no hours of higher duties whereas Mr Neist worked some 628.5 hours. However in the remaining period up to the end of the 92/93 financial year Mr Cartwright worked some 331.5 hours of higher duties compared to Mr Neist's 230 - odd for the same period. Mr and Mrs Cartwright sought to rely on this schedule to contradict evidence given of favouritism in the allocation of higher duties and also sought to rely on the initiation of higher duties for Mr Cartwright at a time when Mrs Cartwright was not responsible for the allocation of duties in the kitchen. The Tribunal is satisfied that Mr Cartwright had, on at least a few occasions, attempted to exercise authority over his workmates. His particular relationship with Mrs Cartwright was perceived by the staff who gave evidence as the main reason why he acted in this way. This is supported by the evidence that Mrs Cartwright would respond to Mr Cartwright's suggestions as to work procedure over established practices. It is also supported by the evidence that, if staff would not do as Mr Cartwright had said they should do, he would seek out Mrs Cartwright who would then give the order. The Tribunal accepts this evidence, which is further supported by the petition which was signed by thirteen members of the kitchen staff. The Tribunal is not satisfied, on the available evidence, that Mr Cartwright was favoured by Mrs Cartwright in the allocation of higher duties. The only documentary evidence of this was the schedule referred to above. That document deals largely with a period during which Mrs Cartwright was away from the kitchen and in any event shows only a comparison between Mr Cartwright's higher duties hours and those of Mr Neist. Mr Cartwright claimed he was excluded from employment opportunities, prevented from working with his wife, denied opportunities to do overtime, and transferred out of the kitchen against his will. Under cross examination Mr Cartwright conceded that his eventual move to the wards from the kitchen came about as a result of "downsizing" in the kitchen following the introduction of the new production system. He agreed that he moved some two months after his wife had left the Stockton Centre and that although he could have remained in the kitchen the introduction of a five day per week roster would have meant a significant decrease in income and would have interfered with his Air Force commitments. Finally he agreed that he was not moved to the wards because of his marital status. As to Mr Cartwright's assertion that he has been denied opportunities to do overtime, no records of overtime worked in the kitchen were before the Tribunal. The assertion was simply denied by the Respondent. The Tribunal cannot be satisfied that Mr Cartwright was denied overtime opportunities simply on the basis of his unsupported allegation. Mr Cartwright's assertion that he was excluded from employment opportunities is not supported by any evidence other than his own short statement to that effect: "Other evidence of discrimination from management at Stockton Centre towards me was apparent when I applied for a promotion position of Hospital Assistant Grade 3 (Storeman) during early 1993. I was denied the promotion although my ability to perform the duties involved had been called upon time and time again not only by my wife, but by Mr C Hall and Mr L Cross. The position was given to a person untrained, unqualified, and not able to perform the duties of the position, so much so that he was eventually demoted." This assertion was denied by Mr Lovell who stated that Mr Cartwright's application for the position was considered by a properly constituted selection committee and the decision was based on merit alone. On the basis of Mr Cartwright's short evidence alone, the Tribunal cannot be satisfied that he was denied employment opportunities by the Respondent. Finally, Mr Cartwright asserted that he was prevented from working with his wife. In so far as Mrs Cartwright was transferred out of the kitchen from October 1992 to May 1993, the Tribunal is satisfied that this action resulted in Mr Cartwright being prevented from working with his wife. It is implicit in Mr Cartwright's complaint that this separation was unwelcome and as part of a range of conduct he perceived on the part of the Respondent, caused him some distress. Returning now to the larger questions of fact posed by an analysis of the relevant provisions of the Act, the first question for the Tribunal to consider is whether Mrs and Mr Cartwright were treated less favourably than people who are not of their marital status in similar or materially the same circumstances. Counsel for both the Complainants and the Respondent suggested that one available comparator for this purpose would be the Complainants themselves before they were married. Whilst recognising the limitations of this comparator, the Tribunal has adopted it for the purposes of its analysis. Most of the unfavourable conduct alleged by the Complainants to have been done by the Respondent or its employees has not been made out. However, it is common ground that Mrs Cartwright was moved from the kitchen to other accommodation and other duties on 8 October 1992. The Tribunal has accepted that this move was unwelcome to Mrs Cartwright and that she felt some distress about it. The Tribunal has also accepted that the move meant that Mr Cartwright was prevented from working with Mrs Cartwright and that this was unwelcome to him. sing the comparator of Mr Cartwright and Mrs Cartwright before their marriage, it is clear that Mrs Cartwright was not moved from the kitchen and Mr Cartwright was not prevented from working with Mrs Cartwright before their marriage. The treatment accorded to them after their marriage was therefore different to the treatment accorded to them before they were married. In Garton v Hillcrest Hospital Inc. (1984) EOC 92 - 101, the Handicapped Persons Discrimination Tribunal in South Australia considered the words "less favourable treatment" and said: "Obviously 'less favourable' treatment can range from trifling to serious. Again a comparatively slight act may have serious consequences. It seems to the Tribunal that first it must consider whether the acts found proved amount to unlawful discrimination. The consequences only fall to be considered at a later stage." The Tribunal, with respect, agrees with this view and considers that an examination of degree or extent of detriment belongs to the assessment of damages to be undertaken if and when unlawful discrimination is proved. Therefore, if Mrs Cartwright and Mr Cartwright were each treated differently after their marriage and that treatment was unwelcome to each of them then it can be said that they were each treated less favourably by the Respondent after their marriage than they were treated before their marriage. It was submitted that removal from the kitchen and its consequences cannot be characterised as less favourable treatment within the meaning of the Act because the treatment was triggered by the actions of the Complainants themselves. The Tribunal considers that the issue of the "trigger" for the less favourable treatment arises as part of its inquiry into whether the next component of section 39(1) is present, that is, whether the less favourable treatment was on the ground of the Complainants' marital status. The Tribunal will therefore proceed to that inquiry. Counsel for the Respondent drew the Tribunal's attention to the following passage from the judgment of Justice Kirby, then President of the Court of Appeal, in Haines v Leves (1987) EOC 92 - 192: "Likewise the words of connection "on the grounds of" require judgment and the characterisation of conduct in terms of its causation. Most activities in life have multiple causes. The assignment of the 'grounds' of the less favourable treatment requires of the Tribunal the characterisation of the relevant causative factor resulting in the less favourable treatment." The Tribunal's attention was also drawn to the following passage from the judgment of Chief Justice Street, as he then was, in Director General of Education & Anor v Breen & Ors (EOC 92 - 015): "To amount to discriminatory conduct prohibited by the Act the characteristic which will provide the ground must have a proximate bearing upon the act charged as discrimination. Moreover the characteristic must have a causally operative effect upon the decision to commit or the committing of the discrimination." With respect, the Tribunal is guided by these passages. Section 39(1) of the Act sets out "an extension of the grounds on which discrimination is proscribed" (per Justice Mahony in the Reddrop decision). The extended grounds are, in relation to a person alleged to heve been discriminated against: a)his marital status; b)a characteristic that appertains generally to persons of his marital status; or c)a characteristic that is generally imputed to persons of his marital status, Taking ground (a) first, Mrs Cartwright relied on the statement attributed by her to Ms Yudaeff, that husbands and wives should not work together, to show that the Respondent took the view that any problems in the kitchen resulted from the marital status of Mr and Mrs Cartwright. The Tribunal found that Ms Yudaeff did not make this statement. Indeed evidence was given by the Respondent of a number of people who are married to each other working, without difficulty, in close proximity in the Stockton Centre. In particular, evidence was given of another married couple working together with no objection from management in the kitchen. This evidence was unchallenged and suggests that but for their own conduct arising from their marital relationship, Mrs and Mr Cartwright would also be able to work together without difficulty or intervention by management. The Tribunal has found that the decision to move Mrs Cartwright from the kitchen was made after she made threats to the staff on her return to the kitchen after the meeting and that the decision was made largely on the basis of her behaviour at the meeting and her conduct on her return to the kitchen. The Tribunal also found that management's concern over Mrs Cartwright's performance persisted throughout her employment. The Tribunal also found that Mr Cartwright had, on at least a few occasions, attempted to exercise authority over his workmates, that Mrs Cartwright would respond to his suggestions as to work practices over established procedure and that if staff would not do as Mr Cartwright had said they should do then Mrs Cartwright would then give the order. The Tribunal is satisfied that all of these matters had a causally operative effect on the Respondent's decision to remove Mrs Cartwright from the kitchen. None of these matters goes directly to the Complainants' marital status. However, Counsel for the Complainants argued that it is open to the Tribunal to find that if the conduct complained of is found by the Tribunal to be based on the Complainants' marital status as well as on other reasons then that is sufficient to support a finding of marital status discrimination. This submission was based on the following passage from the judgment of Justice Clarke in the Waterhouse decision: In the event, however, that the Tribunal decides that there are two grounds for the action or decision one which does and one which does not fall within s. 39(1) then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of , for example marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance. Once there is a finding that marital status was a ground of the discriminatory action then it follows that 'on the ground of marital status' A treated B less favourably. It could be argued that the issue of marital status is necessarily involved in any situation where action is taken by an employer against a manager who is the subject of complaints about the way in which she treats and responds to her husband to the detriment of other staff. The Respondent itself conceded that Mrs Cartwright's marriage to Mr Cartwright had exacerbated an already difficult situation. However, while Mrs Cartwright's and Mr Cartwright's relationship was involved in the problems emanating from the kitchen, the particular relationship appears to have acted on the conduct of Mrs and Mr Cartwright rather than on the conduct of the Respondent. It was the conduct of the Complainants which was the direct cause of the Respondent's action to remove Mrs Cartwright from the kitchen. If Mrs and Mr Cartwright's marital status had a causal effect on the Respondent's conduct then it is one step removed and secondary to their own behaviour. The Tribunal is of the view, then, that no case has been made out in relation to section 39(1)(a) of the Act. Counsel for the Complainants argued that sections 39(1)(b) and (c) of the Act applied to the circumstances of this case because Mrs Cartwright was perceived by the Respondent as being susceptible to affording favourable treatment to her husband. She also submitted that, of the Court of Appeal's decisions in Waterhouse on the one hand and Reddrop on the other, the Waterhouse decision has application to the facts of this case because, just as in the Waterhouse case Ms Waterhouse was perceived by the Australian Jockey Club as being susceptible to corruption at the hands of her husband, Mrs Cartwright was perceived by the Respondent as being susceptible to treating her husband in a certain way. It was a feature of the Waterhouse case that no finding had been made of any particular "personal character deficiencies" which rendered Ms Waterhouse "susceptible to the corrupting influence of her husband". In this case the Tribunal has found that Mr Cartwright had, on at least a few occasions, attempted to exercise authority over his workmates, that Mrs Cartwright would respond to his suggestions as to work practices over established procedure and that if staff would not do as Mr Cartwright had said they should do then Mrs Cartwright would then give the order. All of this took place in a context of continuing management concern over Mrs Cartwright's management and interpersonal skills. If the Respondent did perceive Mrs Cartwright as being susceptible in some way because of the proximity of her husband then there is ample evidence to support the view that that was because of Mrs Cartwright's and Mr Cartwright's behaviour towards each other and their treatment of others in the kitchen and Mrs Cartwright's lack of management skills generally. In short, Mrs Cartwright's and, indeed, Mr Cartwright's conduct was conduct peculiar to Mrs Cartwright and Mr Cartwright and not a characteristic appertaining generally or generally imputed, or imputed by the Respondent, to married people or, indeed, people married to each other. The Tribunal is of the view that the Waterhouse decision does not assist the Complainants because it was the conduct of the Complainants, rather than that of married persons generally (s.39(1)(b)) or conduct generally imputed to married persons (s.39(1)(c)), which prompted the actions of the Respondent. On this basis the Tribunal finds the complaints to be unsubstantiated and pursuant to section 113 (1) (a) dismisses the complaints. The Tribunal makes no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.