Equal Opportunity Tribunal of New South Wales CITATION: Wilson -V- Budsoar Pty Limited [1998] NSWEOT COMPLAINANT: Ms Janine Wilson RESPONDENT: Budsoar Pty Ltd NUMBER: 71 of 1995 Mr P King ( Judicial Member ) TRIBUNAL: Ms L Farmer Mr N Rogan GROUNDS OF COMPLAINT: DATES OF HEARING: 03/30/1998 DATE OF JUDGMENT: 03/30/1998 Complainant: Mr P Dunmeade Paul Dunmeade & Co (Solicitor) Ms S Winters(Counsel) LEGAL REPRESENTATIVES: Respondent: Mr S Friend Friend & Hazard (Solicitor) JUDGMENT IN FAVOUR OF: CHAIRPERSON: In this matter Simpson J delivered the judgment of the Supreme Court on 28 November 1997 in which the matter was referred back to this Tribunal for assessment of damages in accordance with the relevant principles in relation only to the question of damages for economic loss. The general facts of the matter are set out in the Tribunal's judgment dated 27 June 1996. In that determination we awarded general damages for discrimination on the ground of race against the respondent in favour of the complainant and it is unnecessary to repeat the various factual circumstances and findings that are there made. In the judgment of the Supreme Court, her Honour drew attention to the relevant principles in relation to the assessment of damages in a case such as the present and in particular set out at pp 4, 5 and 6 the matters to which reference required to be made. It is acknowledged by the parties that the relevant principles in relation to the assessment of damages consequential upon a finding of discrimination are set out in the judgment of the full court of the Federal Court of Australia in Hall v A & A Sheiban Pty Limited (1989) 85 Australian Law Reports 503, a case which has been followed and applied on this point. In particular at p 522 Lockhart J dealing with the question of compensatory damages said: "Generally speaking the correct way to approach the assessment of damages in cases under s 81 of the Act is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. The effect of s 81 subs 4 is that the damage which is compensable under s 81(1)(b) of the Act includes injury to the complainant's feelings or humiliation suffered by him or her". We pause to observe that compensation has been awarded without criticism by Simpson J in relation to the act of discrimination. Also relevant to take into account in assessing damages for economic loss are the terms of s 113(1) of the Anti-Discrimination Act 1977 which provides: "After holding an inquiry the Tribunal may: ... (b) find the complaint substantiated and do any one or more of the following: (i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to s 95 order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, ...". Ms Winters, who appears for the complainant in this matter, has argued that the correct approach to be taken to the assessment of economic loss is to add up, by reference to the wage rates being earned by the complainant prior to her dismissal, the wages that she would have otherwise earned to date and deduct from that the receipts by way of mitigation in fact such as wages obtained with other organisations and also the monies awarded by Commissioner Merriman in the Australian Industrial Relations Commission on 21 June 1993 in the sum of $10,476. In short Ms Winters has submitted that the assessment of damages in the present situation is uncomplicated and that it is a mere question of comparing the position consequential upon the dismissal and the position which she submits would have been the case on the basis that the employment would have continued indefinitely. For the respondent Mr Friend submits that this is the wrong approach. He draws attention to the precise findings by the Tribunal of discrimination and submits that the approach we should take is to assess economic loss damages by way of compensation flowing from the discriminatory conduct itself. In short what he submits is that compensation is not to be paid by reference to the fact of dismissal but rather by reference to the manner and timing of the dismissal and that when that assessment is made the complainant is not entitled to any or only a small amount of compensation. The position of the two parties in a sense could not be more stark. On the one hand Ms Winters contends that as a result of the mathematical calculations that she has prepared the figure to which Ms Wilson is entitled is in the region of $200,000, far in advance of the jurisdictional limit of the Tribunal of $40,000. On the other hand Mr Friend says that the amount is properly assessed at nil. In our view the submissions of Mr Friend should be accepted in relation to this question. It is important, in assessing the damages, to bear in mind the observations of Lockhart J in Sheiban's case, to which the Tribunal has earlier referred, and the terms of s 113 in that light. The Tribunal is to compare the position in which the complainant might have expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. In the present matter, bearing in mind the findings of the Tribunal and the evidence before us, in December 1992 Ms Wilson was offered a 12 months contract with the respondent along with other senior members of its staff. By reason of the intervention of the union principally she did not proceed with that contract. At the same time negotiations between her and the respondent in relation to her position were becoming heated and difficult. By February 1993 the position in relation to the employment relationship between the two parties had broken down and had become, to use the word of Commissioner Merriman in his decision, unworkable. It was in those circumstances that the Tribunal made the findings that it did in its judgment of 27 June 1996. In particular at pp 23 to 24 the Tribunal made the following findings: "Looking at the matter in this way on the whole of the evidence we are compelled to the conclusion that had Ms Wilson been black and of Aboriginal descent the Board would probably not have dismissed her in the manner and at the time she was dismissed in February 1993 with one week's pay in lieu of notice and without any or any adequate explanation for that dismissal after working as editor since the paper's inception and without giving her the opportunity to respond to the motion for her dismissal...we have come to the conclusion that had she been black and of Aboriginal descent she would have been treated differently". It was in these circumstances that the Tribunal found in favour of the complainant. At p 24 of the decision the Tribunal said: "Assuming therefore that there had been a black editor of Ms Wilson's level of competence and ability as at February 1993, we are of the view that it is not likely that such a person would have been replaced for these insubstantial reasons given in evidence or at least dismissed in the manner in which Ms Wilson was. We find the complaint of discrimination on the ground of race substantiated with respect to that dismissal". It is clear in our view, and having reviewed the evidence in this matter, that the focus of the Tribunal's decision in relation to the finding of discrimination concerned the manner in which that dismissal occurred and in particular the failure of the respondent to give reasonable notice of termination and to give Ms Wilson an opportunity to again put her point of view regarding her continued employment with the organisation. This of course was in the context where the respondent had been facing financial difficulties, the Board had taken steps to review the future of the Koori News and had appointed a consultant to examine the problems facing the organisation and its future. It was unfortunate perhaps for Ms Wilson that this occurred at the same time the relationship between her and the senior management had become unworkable but, regrettably for her, that was the situation in which she found herself. Without doubt the Board had formed the view that it intended to dismiss her and nothing that we have seen in the evidence, having reviewed it, suggests to the contrary. It is important to recall that in her evidence before this Tribunal at p 73 on 1 April Ms Wilson said regarding the action that she took in the Australian Industrial Relations Commission immediately after her dismissal: "That court hearing was about my dismissal, a request for reinstatement, and if I couldn't get reinstatement to have the three months in lieu of notice to which I was entitled under an award. It did not deal with the issues of the non-payment of wages which I am still owed and did not deal with the matter of racial discrimination, it dealt with my sacking and possibility of reinstatement and the non-payment of termination pay of which I was entitled". We would comment in that regard that it was this Tribunal's role to deal with "the matter of racial discrimination", to quote Ms Wilson. It was not this Tribunal's role to deal with the issue of non-payment of wages, that is past wages, and it was not suggested in the case before this Tribunal that that had anything to do with the discriminatory conduct found by the Tribunal. The same passage emphasises that from Ms Wilson's point of view the appropriate or reasonable period for notice of termination was three months. In his submissions Mr Friend acknowledged that three months was a reasonable period in relation to the giving of notice to Ms Wilson in the circumstances of this case. Bearing in mind that it is necessary for us to consider the position in which Ms Wilson might have been expected to be if the discriminatory conduct had not occurred, in our view that position would have been that she would have received proper notice of termination and been dealt with in a non-discriminatory manner in relation to her dismissal and that it was likely that that would have occurred in February or, at the latest, March 1993. In these circumstances Ms Wilson was entitled to wages up until the middle of May and, at the latest, the middle of June 1993. Mr Friend submitted that the relevant date for the determination of the wage entitlement consequential upon the discriminatory conduct in this regard was either 12 May or 21 June 1993 and, at the outside, December 1993. Ms Winters of course submitted that it was an ongoing loss and that it should be assessed as at today's date. Making an allowance for the possibility that having received proper advice as to the manner in which it was appropriate to terminate the employment relationship and to review again the position of Ms Wilson and also to give three months notice, we think that the probable position, bearing in mind the evidence in this case, is that no later than 21 June 1993, the second of the dates put by Mr Friend and the date of Mr Merriman's decision in the Australian Industrial Relations Commission, the employment would have been properly brought to an end. That is, that had Ms Wilson been treated in a non-discriminatory way her position on the evidence is that by the end of June 1993 the employment relationship with the respondent would have been brought to an end in a lawful manner. Bearing those considerations in mind the entitlement of Ms Wilson in those circumstances has been helpfully calculated by counsel. It is common ground that the amount awarded by Commissioner Merriman and the sum of $4,271 earned by way of mitigation in fact with the Northern Star Limited between February and June 1993 should be deducted from the claim for economic loss calculated for that period. That of course does not assist Ms Wilson in her claim for economic loss for the figure is negative. Accordingly the amount to which Ms Wilson is entitled under this head of damage is nil. It is important in coming to this conclusion to observe that the Tribunal has focused its attention on the consequential losses from an economic standpoint to Ms Wilson flowing from the actual discriminatory conduct found. It is noteworthy that Simpson J in her Honour's judgment at p 6 said that upon undertaking the correct analysis, that is in accordance with the manner set out in her Honour's judgment, it may be that the same result that the Tribunal reached in its decision of 27 June 1996 will emerge. That is her Honour recognised that upon proper analysis the result for Ms Wilson under this head of damage may not be any different. That, as it has turned out, is in fact the position. Accordingly for the reasons stated the Tribunal makes no order in relation to the claim for economic loss pursuant to the Anti-Discrimination Act 1977 s 113 subs 1(b)(i). That is the decision of the Tribunal. FRIEND: I seek an order for costs, Mr Chairman. CHAIRPERSON: On what grounds? FRIEND: On the grounds of an offer of compromise. CHAIRPERSON: Well, you had better make good your case, Mr Friend. FRIEND: Yes, it was an offer of compromise. CHAIRPERSON: Have you got a document to hand up? FRIEND: It's a letter of 16 January 1998. CHAIRPERSON: Do you have it there please? Could you show it to Ms Winters first please. How do you make good a claim based upon a Calderbank letter before this Tribunal? FRIEND: On the basis of s 114 and also there is an offer of compromise also which I rely on in relation to when the Supreme Court proceedings were issued, that offer was made in relation to the Supreme Court Rules as a Calderbank offer as well which I can hand up. CHAIRPERSON: Wasn't that a matter dealt with by Simpson J? FRIEND: No, it wasn't, Simpson J referred the matter back here but she made no orders to costs . CHAIRPERSON: You mean costs in the Supreme Court proceedings have been referred to us as well? WINTERS: No order to costs were made by the Supreme Court. WINTERS: No order as to costs has been sought at this stage. CHAIRPERSON: So just let us understand that, no order was sought or made in the Supreme Court in relation to costs, is that right? WINTERS: That's correct. CHAIRPERSON: Well, we can't take into account the Supreme Court position, Mr Friend. FRIEND: No, although as I understand it's still open to the complainant to seek to do so in relation to the Supreme Court decision depending on the outcome of the decision in this Tribunal. CHAIRPERSON: But Ms Wilson was successful in one aspect, her challenge in the Supreme Court. Presumably the reason that no order was made is because you were successful on some other points, I just don't know. FRIEND: Well, her Honour didn't make any reference to costs in her decision. It's just that, Mr Chairman, if an offer was put without prejudice as to costs upon the principles of Calderbank v Calderbank this Tribunal can take into account exceptional circumstances in relation to costs. The offer that was put was an offer more than we say the respondent was obliged to put, however it did so in order to avoid the costs of further litigation and further litigation had been imposed upon the respondents and the costs consequence thereof. CHAIRPERSON: What do you say, Ms Winters? WINTERS: We are here because the Supreme Court sent us here, it's that simple, you can't make costs orders in those circumstances no matter what the decision of the Tribunal is today. CHAIRPERSON: So your submission is, and it seems to have a lot of force I have to say,-- WINTERS: It's been remitted. CHAIRPERSON: --that no matter what was the position this hearing had to occur. Except you could have accepted the offer made by the respondent and that would have made the proceedings unnecessary, it's well in excess of the determination of the Tribunal. WINTERS: It's an offer inclusive of costs in all proceedings. It may well not be an offer of anything at all. CHAIRPERSON: No, well what do you say to the submission of Mr Friend that the making of the Calderbank offer constitutes circumstances that would justify the Tribunal forming the opinion that it's appropriate to make an order for costs? WINTERS: In situations where an offer is made, where that offer is clearly an offer which does not include costs where costs can be identified and are separable, then there may be a basis for a Calderbank letter justifying circumstances for making a costs order but not in circumstances where the matter of dispute has been referred back to the Tribunal by the Supreme Court of New South Wales. This Tribunal is sitting today because it has been directed to basically by the Supreme Court of New South Wales and the fact that the parties have not resolved the issue between themselves is not an issue that should be taken into consideration in relation to a costs application by the respondent today. That certainly would not be a situation that would fall within s 114 subs 2. FRIEND: In answer to that I rely on an offer of compromise - firstly I call for the original copy of an offer of compromise and I intend to rely on the offer of compromise put to the complainant, then plaintiff, prior to the Supreme Court proceedings-- CHAIRPERSON: It isn't that letter? FRIEND: No, that's an additional offer. CHAIRPERSON: Perhaps we had better mark this. EXHIBIT #2 LETTER DATED 16/01/98 ON QUESTION OF COSTS TENDERED, ADMITTED WITHOUT OBJECTION WINTERS: It's just not relevant, I mean an offer that's before the Supreme Court, it's a lower offer anyway, how is it going to help-- CHAIRPERSON: I think Ms Winters is right about that, Mr Friend, do we need to worry about that? Anyway you haven't got any evidence to tender so we are not going to worry about it. FRIEND: That offer was made before - sent by letter of 27 August 1997 which was made prior to the hearing of the matter before her Honour Simpson J, therefore the question of the matter being referred does not come into it. An offer of compromise having been made at that stage prior to the Supreme Court proceedings being heard and the matter being referred back here again would in my submission be a justifiable circumstance for the complainant to be ordered to pay the respondent's costs. It's an offer of 27 August 1997. I hand up a copy of that offer and a letter of 27 August 1997. WINTERS: I object. CHAIRPERSON: Is it appropriate to hand up something that Ms Winters has objected to, Mr Friend? Is it some without prejudice document? WINTERS: It's the Supreme Court offer of compromise, it's not relevant. FRIEND: Well, it is relevant because it's in my submission an offer made in relation to the hearing of these proceedings and the ultimate outcome of the proceedings is that the complainant has not improved her position and it is relevant that in fact (a) that offer of compromise was made and (b) that a further offer was made which also was rejected and had the first offer been accepted both the Supreme Court proceedings and these proceedings would have been unnecessary. CHAIRPERSON: Just excuse us one moment. Mr Friend has sought an order for costs in relation to today's hearing pursuant to the Anti-Discrimination Act 1977 s 114 subs 2. Bearing in mind all the circumstances of the case, the Tribunal is not of the opinion that there are circumstances that would justify making an order for costs in the present matter in relation to today's hearing and in the circumstances makes no order as to costs. 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