Equal Opportunity Tribunal of New South Wales CITATION: Mayfield -V- Legion Cabs (Trading) Co-Operative Society Ltd (No.1) [1997] NSWEOT COMPLAINANT: Theresa Mayfield RESPONDENT: Legion Cabs (Trading) Co-Operative Society Ltd NUMBER: 14 of 1996 Ms Narelle Bell ( Judicial Member ) TRIBUNAL: Mrs J Strickland Ms S Tracey GROUNDS OF COMPLAINT: Sex Discrimination DATES OF HEARING: 02/11/1997 DATE OF JUDGMENT: 05/07/1997 Complainant: Ms F Davies (Counsel) Bryson Taylor & Associates (Solicitors) LEGAL REPRESENTATIVES: Respondent: Mr R Alkadamani (Counsel) Gadens Ridgeway (Solicitors) JUDGMENT IN FAVOUR OF: Respondent This is a complaint by Ms Theresa Mayfield against Legion Cabs (Trading) Co-operative Society Ltd alleging discrimination in her employment on the ground of sex. Ms Mayfield complained to the President of the Anti-Discrimination Board on 4 August 1994. The complaint was referred to the Tribunal by the President of the Board pursuant to section 91 (2) of the Anti-Discrimination Act 1977 ("the Act") on 17 January 1996. Ms Mayfield's complaint is that, whilst employed as a Senior Telephonist in the Radio Room of the Respondent, she worked for one three month period, replacing Mr Greg Wilson, Shift Controller, and for about three to five shifts per week during a fifteen month period, replacing Mr Robert Elliot, Shift Controller, carrying out the duties of a Shift Controller. She maintained that although she was performing this work, which involved duties additional to those of a Senior Telephonist, she was not paid at the rate of a Shift Controller. Ms Mayfield alleged that this discrepancy in rate of pay was on the ground of her sex. Mr Elliot gave evidence in support of Ms Mayfield that when replacing him, she had performed the same duties as him. However, in cross examination, he conceded that he, as Shift Controller, had an ongoing permanent responsibility for the shift. He also said that Ms Mayfield filled in for him regularly for two shifts per week and, over a period of approximately one year, she filled in for him when he was ill. He said this additional or irregular filling in amounted to a total of about one month over the one year period. Mr Russell Thornton provided a statement that he had worked in a similar position to that of Ms Mayfield but had left the employ of the Respondent following "the disparity in hourly rate between myself and another employee Robert Elliot". He went on to say, in his statement: During this time I was aware of other employees with similar pay differences including Theresa Mayfield who felt that she was also discriminated against with no justifiable reason given by the radio manager or the board of directors. To the best of my knowledge Mr Elliot was paid above other employees doing the same work for a period since the termination of Mr A Bouie the then Radio Manager in 1994." Ms Mayfield conceded that when discharging the additional duties she received a "responsibility allowance". The Respondent's case was based on the evidence of Mr Hllia Dedoussis, Communications Manager of the Respondent. Essentially Mr Dedoussis' evidence, which the Tribunal had no reason not to accept, was as follows. There are three categories of positions in the Radio Room at Legion Cabs: 1. Shift Controller 2. Senior Telephonist/Query Operator 3. Telephonist For any one of the three daily shifts there is only one Shift Controller. A Telephonist's duties are to take telephone calls from the public and record the pickup and destination details on the Respondent's computer system. Senior Telephonists perform the same duties as Telephonists but must also be able to operate the radio/query channel. A Senior Telephonist may also be required to run the Communications Room in the temporary absence of the Shift Controller. On these occasions the Senior Telephonist is paid a "shift responsibility loading" under the relevant Award. A Senior Telephonist who assumes this responsibility is sometimes referred to as a Supervisor. A Senior Telephonist may also sometimes be required to assist the Supervisor or Shift Controller. On these occasions the Senior Telephonist is paid a "shift senior loading" under the relevant Award. Shift Controllers have permanent responsibility for the operation of the Communications Room over one of three shifts. Their responsibilities include: 1. employee relations 2. reporting incidents or complaints to the Communications Manager 3. monitoring the attendance of employees 4. ensuring that employees appropriately perform their duties and 5. liaising with the Communications Manager regarding the hiring, firing and promotion of staff. Shift Controllers do not receive the "shift responsibility loading" or the "shift senior loading". However, Shift Controllers receive a higher rate of pay than Senior Telephonists. Generally Shift Controllers only work five days per week and so a Senior Telephonist is appointed to supervise the Communications Room in the absence of the Shift Controller. This also occurs when the Shift Controller is absent due to illness or annual leave or when the position is temporarily vacant. The reason why a Senior Telephonist who fills in for a Shift Controller is not paid the same rate as a Shift Controller is that a Shift Controller has ongoing responsibilities over the Communications Room which are not undertaken by a supervising Senior Telephonist. These include long term evaluation of employees, long term resolution of disputes within the Communications Room and responsibility for training new employees. Mr Dedoussis also explained that in an instance where the Shift Controller's position was temporarily vacant he, as Communications Manager, would have ultimate responsibility for the shift. Mr Dedoussis explained the various rates of pay for the three positions and the various rates of loading for additional work and took the Tribunal through a number of pay records and memoranda which showed that a number of women had been employed by the Respondent as Shift Controllers. These were: 1. Ms B Bissett from before 1 January 1994 (Mr Dedoussis stated that Ms Bissett had in fact been appointed Shift Controller in November 1993) 2. Ms M Borham from 24 August 1994 3. Ms D Hibbert from 19 July 1995 4. Ms K Riordan from 21 May 1996 The Tribunal notes that the President's Report shows that the first letter to the Respondent to give notice of the complaint and to request a response was sent on 28 April 1995. Mr Dedoussis also took the Tribunal through a number of other records which showed that some men working as Supervisors received the same rate of pay as Ms Mayfield, that is, less than that received by Mr Elliot. Sections 24 and 25 of the Act provide relevantly: s. 24 (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same or similar circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex; ... s. 25 (2) It is unlawful for an employer to discriminate against an employee on the ground of sex: (a) in the terms or conditions of employment which the employer offers the employee; (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee or subjecting the employee to any other detriment. Ms Mayfield has complained that she was not paid at the same rate as the person she was filling in for - a man. She claimed that she was paid less because she is female. Counsel for Ms Mayfield invited the Tribunal to reach this conclusion on the basis that it was open to it to do so. The Tribunal does not agree. We can find no evidence to support the conclusion that Ms Mayfield was paid less because she is a woman. Rather, it appears that she was paid less because she had not been appointed permanently to the position of Shift Controller and, under the structure adopted by the Respondent, was therefore, when she "filled in", entitled only to be paid the relevant loadings. There is no suggestion that she was not paid those loadings when entitled to them. Counsel for the Complaint also argued that a finding by the Tribunal that Ms Mayfield's complaint is substantiated would be supported by the Tribunal's decision in Bovill v RZ Mines (Newcastle) Pty Ltd (1995, unreported). The Tribunal is of the view that that case is distinguishable from Ms Mayfield's case because in the circumstances surrounding Ms Mayfield's complaint there is a settled structure, including set allowances or loadings, for persons temporarily acting in a higher position. There has been no evidence to show that these allowances or loadings were any more or less available to men or women. The Tribunal considers that there is no need for it to seek to look behind the employment structure adopted by the Respondent because the evidence shows that at least one man shared Ms Mayfield's grievance. The evidence also shows that a number of women have been appointed to the position of Shift Controller - one of them well before the Respondent received notice from the President of the Anti - Discrimination Board of Ms Mayfield's complaint. Counsel for the Respondent argued that the very existence of various loadings for supervisory duties and extra responsibility on a shift support the distinction made between a person temporarily acting in the position of Shift Controller and a person who permanently adopts the extra duties and responsibilities of the position. The Tribunal agrees. For the above reasons the Tribunal dismisses Ms Mayfield's complaint. The Tribunal notes that it has reserved on the question of the costs of a directions hearing on 8 August 1996. The Tribunal considers there are no circumstances to justify departure from the general provision in section 114 (1) of the Act that each party pay its or her own 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.