Equal Opportunity Tribunal of New South Wales CITATION: Quinteros -V- Delfin Realty (Nsw) Pty. Limited [1996] NSWEOT COMPLAINANT: Mr Victor Quinteros RESPONDENT: Delfin Realty (NSW) Pty. Limited NUMBER: 13 of 1994 Mr Geoffrey Bartholomew ( Judicial Member ) TRIBUNAL: Ms Lolita Farmer OAM Ms Laura Mooney GROUNDS OF COMPLAINT: Discrimination on the grounds of race in the area of employment DATES OF HEARING: 08/16/1995; 08/17/1995; 08/18/1995; 08/23/1995; 08/24/1995; 04/15/1996; 04/16/1996; 05/17/1996 DATE OF JUDGMENT: 08/05/1996 Complainant: Kalyk Nash Lawyers (August 1995 dates) Mr A Moses (Counsel) (for August 1995 dates) Mr A Patterson (Counsel) (for April 1995 dates) LEGAL REPRESENTATIVES: Respondent: Colin Biggers & Paisley Solicitors Mr G Ellis (Counsel) JUDGMENT IN FAVOUR OF: The Complainant, Mr Victor Quinteros, is an Australian citizen of Chilean national origin who was employed by the Respondent from 8 October 1991 to 16 July 1993. The Respondent, Delfin Realty (NSW) Pty Ltd, is a corporation incorporated in New South Wales. On 11 June 1993 the Complainant lodged a complaint with the Anti-Discrimination Board against the Respondent alleging discrimination on the ground of race in the area of employment contrary to the provision of the Anti-Discrimination Act. Further complaints were lodged with the Board on the 3 and 6 of August 1993. The Anti-Discrimination Board attempted unsuccessfully to conciliate the complaint and the President of the Board thereupon, on 11 April 1994, referred the complaint to the Equal Opportunity Tribunal pursuant to Section 94(1) of the Act. The matter was listed for mention on 14 June 1994. The complainant, on that occasion, sought an adjournment of the proceedings whilst he sought legal aid. The matter came back before the Tribunal on 27 March 1995 and again on 19 April 1995. Ultimately final hearing dates were fixed for 16 to 18 and 23 and 24 August 1995. After five days of hearing the matter was far from completion and a further eight days of hearing were allocated, but, owing to pressure on the Tribunal's diary, these could not be accommodated until April 1996. In the event the hearing was completed after only two further days. It is convenient to commence with a brief description of the Respondent's structure and operations as stated by Mr McNamara, a director of Delfin Realty (NSW) Pty Ltd, in his statement dated 24 July 1995. Delfin Realty (NSW) Pty Ltd is a subsidiary of Delfin Property Group which is based in Adelaide. At Wattle Grove there were three operations, two of which were carried out by Delfin Realty (NSW) Pty Ltd, the third being carried out by Delfin Property Group. Only the first two operations are significant in the context of this matter. Of these that at Wattle Grove itself was concerned with selling residential land. The second, at Holdsworthy, was a joint venture with the Defence Housing Authority and its function was to obtain existing houses from the Authority and put them on the market. Each operation had its own office. Mr Quinteros was employed by the Respondents on or about 8 October 1991 as a salesperson in the Holdsworthy Redevelopment Project. He was paid a base award wage of $535.00 per week plus a commission of $300.00 on each house sold. This was lower than the normal real estate commission because the houses were made available by the Defence Housing Authority and the salespersons did not therefore have to seek the properties for listing. In or about February 1992 the commission was raised to $450.00 because a third person, Mr Parker, was employed as a member of the Holdsworthy sales team. Mr Quinteros complained that the Respondent discriminated against him on the ground of his race in that a) the Respondent prevented him from carrying out his duties which resulted in his being deprived of remuneration he would otherwise have received; b) the Respondent permitted its employees to make racially discriminatory remarks about him; and c) that he was unlawfully suspended from his employment and that subsequently the Respondent unlawfully terminated his employment. The Tribunal turns first to the complaint regarding the making of racially discriminatory remarks. Three specific allegations were made in addition to a generalised unspecific allegation. The first two of the specific allegations involved Ms Lambourne (nee Hodges) who was employed by the Respondent as secretary and receptionist at the Wattle Grove office. The first of the allegations involving Ms Lambourne concerned a memorandum which was typed by Ms Lambourne on the computer of which according to her, there was only one print-out which was shown to the sales team at the Wattle Grove site and was then screwed up and thrown into the waste-paper basket from which Mr Quinteros retrieved it. No summary or paraphrase of the memorandum is possible and it is therefore necessary to quote it in full. It read as follows: To: ARTHUR ILIAS From: DOWNSTAIRS STAFF Date: 25 May 1992 Subject: HIGHLIGHTS OF THE WEEKEND _________________________________________________________ Enquiry level for the weekend was consistent with special attention being paid to the lavatory. Many people insisted on balloting their own blocks. Against our better judgment we had to partake in sharing a small portion of the Sales and Information Centre with approximately 150. Over 50% of this enquiry had eaten curry the night before. At one stage on the weekend we allowed a gentleman to ballot his own blocks and use the facilities. He took advantage of stage 1 and stage 2. We told him he wasn't allowed to release stage 3 until a later date. We insist that the net Sales and Information Centre also include a public toilet. With many, many, many cans of Glen 20. We ask, whilst in the position of Manager you assist our well-being. The riot's were(?) pretty bad in America so please help us to stop the choking of the darkies. Ms Lambourne stated that it was intended to be a joke, although she subsequently conceded that it was " tasteless ". It appears to the Tribunal to be not only tasteless, but also humourless and largely unintelligible. Mr Quinteros claims that it was racist and was intended to refer to him. The Tribunal accepts that it was intended for the edification of the Wattle Grove office and cannot therefore have been intended to refer to the Complainant. Whether it was racist seems to the Tribunal, given its unintelligibility, to be improbable. The Tribunal is of the view that on the balance of probabilities the Complainant has not succeeded in establishing that the preparation and circulation of this memorandum was evidence of racial discrimination contrary to the provisions of the Anti-Discrimination Act. A second incident, also involved Ms Lambourne, who on receiving a telephone call from a prospective purchaser, put the caller on hold and said to Mr Quinteros: " Victor, this call is one of yours ". This Mr Quinteros interpreted as meaning that the call was from a person of Hispanic ethnic origin, and was a racial remark. According to Mr Quinteros Ms Lambourne also said: "they speak like you with that funny accent ". This Ms Lambourne denied. Ms Lambourne's explanation was that she meant that the enquiry related to the Holdsworthy site and not the Wattle Grove site. In the circumstances this seems to the Tribunal to be perfectly reasonable explanation. The Tribunal therefore takes the view that the Complainant has not succeeded in establishing that this remark was evidence of racial discrimination. The third specific incident relates to a telephone call made by Mrs Rudiack, the Complainant's sister. In April 1993 Mrs Rudiack telephoned the Respondent and was connected to Mr Robinson. According to Mrs Rudiack the following telephone conversation took place: Mrs Rudiack: Hello, may I speak to Victor Quinteros, it is his sister Nelly speaking and I need to speak with him quite urgently. Mr Robinson: I have no time to take a message for a wog. According to Mrs Rudiack the urgency of the call arose from the fact that his daughter had been in an accident at school and had been taken to hospital. Mrs Rudiack, being upset by the reply she had received from Mr Robinson, telephoned the Respondent again and asked to be put through to Mr Ilias, thereupon the following conversation took place: Mrs Rudiack: I have just tried to speak to my brother, Mr Victor Quinteros. However I was unable to as a person who identified himself as Col Robinson told me he had "no time to take a message for a wog". I cannot believe it. Mr Ilias: I am terribly sorry about this incident. I will try to speak to Mr Robinson. I apologise for what has happened. I will give the message to Victor. Mr Robinson's account of the conversation, as set out in his statement was: When I received Mrs Rudiack's call I sought to put it through to Holdsworthy. That line was engaged and I therefore had a conversation to the following effect: Mr Robinson: The line is busy. Mrs Rudiack: Can I wait for Victor Mr Robinson: That will be inconvenient. I have a number of calls coming in and I have clients to attend to. It would be more convenient for me if I were to pass on a message to Victor to ring you back. If I put you on hold it will mean that every thirty seconds the phone will ring and I'll have to answer it. That is not convenient. The conversation went on for a while in that vein and it was clear to me that the lady was not going to accept my reasoning. I then said words to her to the following effect: I will leave a message for Victor to ring you back. Then I hung up. Under cross-examination Mr Robinson admitted that he may have been brusque because he was busy but he denied using the word "wog". Mr Robinson, according to his statement, subsequently did get through to Holdsworthy but as Mr Quinteros was not there he left a message for Mr Quinteros to ring his sister. Later on the same day Mr Robinson had a conversation with Mr Quinteros which, according to Mr Robinson's statement, was to the following effect: Mr Robinson: I had a message from your sister. She was a bit upset that I hadn't put her through to you but I told her that I couldn't because I was busy. Mr Quinteros: I had to get that message because it was about my daughter being taken to hospital. Mr Robinson: Your sister did not tell me that. She did not mention to me that there was an emergency. Even when I got through to Holdsworthy I found you were not there. Mr Quinteros: I'll have to think about this. Mr Ilias' recollection of the incident, as set out in his statement was to the following effect: I recall receiving a call from a lady and we had a conversation in words to the following effect: Mrs Rudiack: I am Victor's sister. I have been trying to contact Victor because there has been an emergency. Col Robinson wouldn't put the call through to him. Mr Ilias: I am sorry about what has happened. I will need to talk to Col Robinson to get his version of it. I will get the message to Victor. Thereafter, according to Mr Ilias, he spoke with Mr Robinson who said to him words to the following effect When I received her call I had people in the sales office. I had calls coming in. She wanted to be kept on hold. I could not do that because the call would keep coming back every thirty seconds. The Holdsworthy internal line was engaged and I could not transfer the call. I told her that I could not do anything about it and that I would pass the message on. She did not tell me that there was an emergency. Subsequently Mr Ilias had a conversation with Mr Quinteros with words to the following effect: Mr Quinteros: My sister tells me that Col Robinson refused to pass on a message to me. There was an emergency. Mr Ilias: I have spoken to Col Robinson and your sister about that. Col tells me that they were very busy and your line was engaged and he could not pass on the message. He could not put her on hold as she wanted. He was not told it was an emergency. I have accepted his explanation. Mr Ilias denied that Mr Quinteros made any allegation that the word "wog" had been used. Clearly on this point there is a simple clash of evidence reflecting differing recollections of the incident. What has weighed with the Tribunal in deciding this point is that the Tribunal finds it amazing that Mr Quinteros, a man of some sensitivity on these matters, in response to an alleged remark of such extraordinary offensiveness, made to his sister, should have reacted with such a mute response. The Tribunal also notes that this incident is not referred to in either his initial complaint to the Anti-Discrimination Board nor in his statement in support of his Points of Claim. The Tribunal takes the view that, on the balance of probabilities, the recollections of Mr Robinson and Mr Ilias are more likely to be closer to the truth. The Tribunal takes the view that Mrs Rudiack's call may have been badly handled, but notes that an apology was tendered. The Tribunal does not see this matter as evidence of racial discrimination. For the rest Mr Quinteros made allegations of mostly unspecified racial comments for which no evidence was supplied. Mr Ilias, in his statement, referred to racial " banter " in which the sales persons indulged, and in which there was some evidence that Mr Quinteros participated, and may have been even more at fault, but unspecified racial banter provides no basis for a complaint of racial discrimination. A further point in relation to this aspect of the case is the Complainant's practice of carrying in his wallet a card on which was written a definition of the word " prejudice ", which he was in the habit of producing and showing to people. No explanation of the practice was forthcoming, and it could even have been viewed by some people as intimidating. The Tribunal turns, therefore, to consider what appears to be the gist of Mr Quinteros' complaint, namely, a group of incidents which may roughly be classified under the heading, as set out in his Points of Claim, of preventing him from being able properly to carry out his duties, as a result of which he was deprived of remuneration which he would otherwise have received. It is implicit rather than explicit that the incidents complained of under this head were motivated by racial considerations and are therefore evidence of racial discrimination. The Tribunal turns first to consider the first three incidents raised by Mr Quinteros in the shorter of his two statements dated 23 June 1995. The first relates to an invitation he received in November 1991 to attend a marketing function in or about November 1991. On the day of the function Mr Cole, the then Sales Manager, informed him that he would not be able to attend the function which was intended only for those concerned with the Wattle Grove operation. This Mr Quinteros interpreted as evidence of discrimination. Mr Cole's statement threw no light on the matter and the Tribunal takes the view that, given the fact that the Respondent was conducting two distinct operations in the area, the explanation for the withdrawal of the invitation was perfectly reasonable and provided no evidence of racial discrimination. The second matter raised in the shorter of Mr Quinteros' two statements related to his request to Mr Ilias to have business cards printed with LREA after his name. This request was declined. Mr Ilias in his statement stated: The reason why I did not have cards printed at that time was because Delfin was reviewing the business cards for the entire organisation. Different operations of Delfin had printed their own cards and used different formats for the cards. The Delfin Property Group was considering to standardise the format of the cards. I did not wish to alter Mr Quinteros' cards if it meant it would have to be changed soon thereafter. The Tribunal accepts this as a reasonable explanation and does not see that the refusal to have new cards printed as evidence of racial discrimination. Admittedly Mr Robinson had had new cards printed with the coveted letters after his name, but as Mr Ilias made clear in his statement: The reason why I agreed to change Mr Robinson's card was because his request was made before the review was in place and also because he had run out of his cards and new cards were being printed for him in any event. The Tribunal cannot see that this complaint provides any evidence of racial discrimination. A further complaint related to the insertion of advertisements which included Mr Quinteros' private home number after his employment with the Respondent had ceased. Mr Quinteros interpreted this as a deliberate attempt at racial harassment. Mr Ilias accepted responsibility for this. He said in his statement: I am responsible for that incident. It was caused by an oversight on my part because although I was responsible for the placement of advertisements I did not change the after hours numbers on the advertisements referred to after Mr Quinteros was dismissed. This oversight was not intentional and to the extent it cause [sic] Mr Quinteros or his family any embarrassment I apologise. He further stated: It is the company's policy that at least two after-hours telephone numbers appear on advertisements relating to the Holdsworthy properties. The after-hours telephone numbers were to be the salemen's numbers. Since there were three salesmen at the Holdsworthy site, the telephone numbers were rotated. Mr Quinteros' number appeared on 25 August because it was his turn, and had he remained with the company it would have appeared in the following advertisement as well. Mr Ilias finally observed that: I believe the mistake was brought to my attention by Mr Blackburn when that advertisement appeared and as soon as he did, I telephoned the agency and asked them to remove that number from following advertisements. The Tribunal accepts Mr Ilias' explanation and does not agree that this admitted error constitutes evidence of racial discrimination. A further matter raised by Mr Quinteros in his longer statement arose out of his request to work in general real estate on his days off. Mr Carlsson refused this request as involving a conflict of interest. Mr Quinteros then raised the matter with Mr McNamara who replied; according to his statement, with words to the following effect: We have a commitment at Holdsworthy to sell properties for the Defence Housing Authority. We cannot have you selling properties for someone else because that will put you in a conflict with your duties here. We cannot have a situation where you will prefer selling properties for someone else over selling properties here because the commission paid in general real estate is higher. It is totally unacceptable to the company for you to work for two employers. Mr Quinteros' account of the conversation with Mr McNamara has Mr McNamara saying: " This will lead to termination of your employment with us ." Mr Quinteros implicitly suggests that this was an act of racial discrimination. Again the Tribunal accepts that Mr McNamara's response was perfectly reasonable and cannot see that this was evidence of racial discrimination. Yet another matter raised by Mr Quinteros in his longer statement was that on one occasion, as he was leaving the office, he attempted to enter his alarm code which did not work. He phoned Mr Ilias who when he arrived said, according to Mr Quinteros' own statement: " Don't worry, the same thing happened to Terry [Mr McNamara] during the week ". Again by implication he seems to be suggesting that this was an act of racial discrimination. This the Tribunal cannot accept. Further matters of increasing tenuousness were raised during the hearing, such as Mr Quinteros alleging, after the Respondent had installed an answering machine, that the Respondent was taping his messages (referred to by Ms Lambourne) and the question of whose picture was displayed as salesperson of the month (referred to by Mr Quinteros in his longer statement). These the Tribunal dismisses as being of no substance. The major complaint concerned what may be referred to as the allocation of work which since there was a commission component in the remuneration received by the sales persons was a matter of some concern to all members of the sales team. The main thrust of Mr Quinteros' complaint on this point was that he worked harder and was more competent than his colleagues and yet earned less than they did. He was thus in the somewhat difficult position of alleging that he sold more homes than did his colleagues and at the same time claiming that he was deprived of the opportunities to earn commission. Nevertheless, he attributed the alleged discrepancy in earnings to racial discrimination. The evidence established that he was an aggressive salesperson, but his suggestion that he was more competent than his colleagues was somewhat dented by evidence that whilst he may have taken more deposits than they, he suffered from more "crashes", that is to say that although he took more deposits than they did, these did not necessarily lead to completed transactions. When due allowance was made for "crashes" there appeared to be no more than normal variation in the number of sales that went to completion. Thus the evidence of Mr McNamara in his statement: I was aware that the salesmen were achieving roughly the same number of sales. At no time was I under the impression that Victor was working harder than the rest or getting more results. I was aware that more of Mr Quinteros' sales were failing. My impression was that their performance ultimately was the same. The evidence of Mr Quinteros did not bear upon the difference between the figures for deposits taken and those for sales which went through to completion. Two specific points were raised by Mr Quinteros. The first related to the allocation of incoming telephone calls. The original system of allocating such calls was described by Ms Lambourne thus: The system that was in place at the time for incoming telephone calls for the Holdsworthy site was that if the caller requested for a particular salesman the call was put through to that salesman. If it was a general enquiry, I put the call through to the Holdsworthy office and whichever salesman picked up the phone dealt with the enquiry. Mr Quinteros appears to have complained about the operation of this system for Ms Lambourne further stated that some months after Mr Parker commenced working at the Holdsworthy site Mr Duncan Cole said to her: Victor has complained to me that you have not been giving him calls and have been directing them to other sales people. I want you to keep a piece of paper on your desk to record the calls that are coming in and that enquiries are to be referred to the salesmen on a rotational basis. Mr Quinteros in his statement referred to one specific incident which occurred in March 1992. His account of the incident is that he heard the telephone ring and said to the receptionist, Ms Lambourne: " If that call is an enquiry please put it through to me ". Ms Lambourne answering the call, said, according to Mr Quinteros: " I will put you through to Chris Parker ". Mr Quinteros, according to his statement, then said to her: " Why did you put the call through to Chris after I told you to put it through to me ". Ms Lambourne replied: " I work under my bosses instructions. " Ms Lambourne's recollection is similar but vaguer: Quinteros: You don't put enough calls through to me Lambourne: Victor, you get your fair share of calls. There is a system in place for allocating calls. I work under Duncan's instructions. After this incident Mr Quinteros, according to his own statement, made a complaint to Mr McNamara in a conversation to the following effect: Quinteros: Why are telephone calls only being put through to Chris Parker? I will not put up with any more favouritism McNamara: Alright. Mr McNamara's response was: I have no recollection of that conversation or any conversation with Mr Quinteros where he complained to me about favouritism. It would be unusual for Mr Quinteros to approach me about those matters or anything to do with Linda Hodges. They would be matters that he would normally raise with the sales manager at the time. That would have been either Duncan Cole or Arthur Ilias. This rotational system was in operation for only a few weeks because as Ms Lambourne stated: The system was in place for a few weeks only. I found that it was difficult to manage because if I received an enquiry that was to be referred to, for example, Mr Quinteros on the rotation basis, when the call was put through and Mr Quinteros was in conference with someone else, he could not take the call. That meant that the enquiry was then answered by another salesman who was available. This upset the system. I mentioned this to Duncan Cole. He took no action. I therefore discontinued that system. The rotational system whilst it was in force, despite its difficulties, seems to the Tribunal to have been an honest attempt to address Mr Quinteros' concerns, and its abandonment was due to difficulties inherent in the nature of the operation, and was not in any way directed at Mr Quinteros. The Tribunal finds that neither the establishment of the rotational system nor its discontinuance constitutes evidence of racial discrimination. Shortly after the discontinuance of the rotational system, in May 1992, a " pooling system " was introduced as the method of distributing commissions. The evidence indicates that this was done by agreement among the salespersons. It was not imposed by the Respondent. Mr McNamara in his statement, dealing with this point, stated: There was no arrangement between the company and salesmen for "pooling" of the commission. Our payment system does not accommodate for it. Payment was made in accordance with the sales advice received by us as to which salesman was to be credited a particular sale. I became aware during 1992 that the salesmen were operating some system of sharing sales although I did not become aware of the specific mechanism they employed until Mr Quinteros commenced proceedings against this company in the Industrial Magistrate's Court which was heard on 18 February 1994. In preparation for that case I investigated the system in operation by speaking with the remaining salesmen John Blackburn and Chris Parker, and understood how it operated. At the time, although I was aware that some system was in place, I was not concerned because as far as the company was concerned it was in the company's interest that the salesmen acted co-operatively and serviced each client properly. The operation of the system and its introduction is described by Mr Parker in his statement. Rather confusingly he refers to it as a rotational system, although it is clearly quite distinct from the system introduced by Mr Cole and referred to by Ms Lambourne. Mr Parker stated: The system that I proposed involved sharing of the inquiries and allocations on a rotational basis. In other words, every third sales advice form that was filled would be allocated to the one salesman regardless of who prepared the form. Every successive sales advice form would be allocated to the next person on the list nominated to receive credit for that sale. Accordingly, in or about early 1992 we had a meeting at the sales office at Holdsworthy. Present were John Blackburn, Victor Quinteros and myself. I had discussed my proposed scheme with John Blackburn prior to the meeting. At the meeting John Blackburn said the following words or words to the following effect: Chris Parker has suggest to me a system which appears to me to be a fairer way of sharing the sales advices that we prepare. It is a good system and I agree with it. Under the system, it does not matter who prepares the sales advice form but the person to whom that sale will be credited will be the one who is next on the list. So every third sale would be available to you. The other advantage of the system is that even when you go on holidays your income will not be interrupted and you will still be credited every third sales advice. Victor Quinteros said words to the following effect: Count me in. I will go along with that. That sounds good. This scheme was put into operation but it soon appeared that it was in need of revision, for reasons which Mr Parker explained in his statement: During that month I noticed that both John Blackburn and I were getting a high proportion of sales advices that were not proceeding to exchange. A high proportion of these failures were sales advices that were taken by Victor Quinteros and allocated to both myself and John Blackburn. We shared the leads that came into the office, that is, inquiries received by the office. Invariably the system was that we wrote sales advices for ourselves, although on occasion, one person would write two consecutive sales advices in which case, one of them would be allocated to somebody else. However, as a general rule, the interview with the inquiry would result in a sales advice for the person conducting the interview. It seemed to me that when this situation arose with Victor he would pass on to John Blackburn or me the sale that was unlikely to proceed to settlement and keep the better one for himself. I then had another conversation with John Blackburn and we convened another meeting with the three of us present. John Blackburn said words to the following effect: We are noticing that a large number of sales advices that you write Victor, are falling through and both Chris and I are losing out on the commission. I think the problem is that you do not qualify them properly. I have spoken to Chris and to cover that situation we want to change the system so that if a sale does not proceed to exchange within the month in which the sales advice is written, then the person on that sales advice will be allocated the next sale. However, if the sale continues into the following month then the person to whom the sale was allocated would then suffer loss of the failed sale. Mr Quinteros said words to the following effect: Okay, that is fine. Mr Quinteros, nevertheless, found the so called "pooling system" unsatisfactory. According to Mr Quinteros' own statement he first complained to Mr Carlsson with whom he had a conversation to the following effect: Quinteros: It is not fair that I am working harder than Chris and John and yet we are all paid the same amount. Carlsson: You implemented the system. Quinteros: It is not fair. Especially if Chris is not pulling his weight and lazing around. Carlsson: You introduced the system. If you want more money go and work in General Real Estate. Quinteros: I am working harder than the rest so I should be paid accordingly. I have never seen a system like this. It is very unfair. Mr Quinteros then complained to Mr McNamara and according to Mr Quinteros' own statement the following conversation ensued: Quinteros: I am not happy with the pooling system. I do not think it is working for me. I am working harder than the other two and yet we are all making the same amount of money. Financially, I am worse off than when I commenced employment with you and the commissions were $300 per sale. McNamara: Alright Victor, you are working harder than the rest and getting more results. This is evident from the trust receipt books. I will speak to my boss. To this Mr McNamara responded in his statement by denying that he said the words attributed to him and pointing out that as he was the " boss " there was no " boss " for him to speak to. Mr Quinteros also complained to Mr Ilias about the pooling system to whom he made the usual complaint. According to Mr Quinteros' statement, Mr Ilias said: I will instruct Terry McNamara to change the system back to the individual incentive system. Mr Ilias' recollection of the conversation was as follows: Quinteros: I am not happy with the pooling system and I want to change it. Ilias: Before you start lets call Terry in here and then we will discuss it. Mr McNamara was then telephoned and when he arrived and after some discussion Mr McNamara, according to Mr Ilias, said: Wait until Monday so that I have an opportunity to talk to the other salesmen. As of Monday we will change the pooling system. Mr McNamara's recollections regarding this point are as follows: In the week preceding the altercation on 10 July 1993 Mr Ilias said to me words to the following effect: Victor has been pestering me about this pooling system. What should I do about it. I said to him words to the following effect: Look, if he raises it with you again, call me and we will discuss it together. On or about 8 July Mr McNamara received the telephone call referred to by Mr Ilias and he went over to the Holdsworthy office. His recollection of what he said to Mr Quinteros on that occasion was as follows: You have set up the system. You have three options: you could live with the system you have put in place, change the system or, if you cannot find satisfaction in those two solutions, then leave. To this, according to Mr McNamara, Mr Quinteros replied: " I want to change the system ". Then Mr McNamara said to Mr Quinteros: I will call a meeting with the other salesmen on Monday. We can discuss it and decide what new arrangement is to apply. This has gone on for long enough. Since you can't solve the problem, I will step in. Considering the above stated evidence the Tribunal is at a loss to understand how the so-called " pooling system " can in any way whatsoever be regarded as evidence of racial discrimination by the Respondent. In relation to Mr Quinteros' access to opportunities to earn commissions, for that is what this complaint comes down to, the Tribunal is unable to accept that Mr Quinteros was discriminated against on the ground of race in relation to the allocation of work or, indeed, that he was discriminated against at all in this matter. The Tribunal turns, therefore, to consider the incident which led to Mr Quinteros' suspension and eventual termination, which seems to have occurred not only after the abandonment of the so-called " pooling system " but which may even have been caused by it. Mr McNamara's intention to call a meeting with the salesmen on the following Monday seems to have been frustrated, possibly by Mr Quinteros himself. According to Mr Ilias' statement he received a telephone call from Mr Blackburn on 9 July 1993 in which Mr Blackburn, according to Mr Ilias, is alleged to have said: " Victor tells me that we are changing from the pooling system ". Mr Ilias replied: " The new system will be implemented from Monday ", to which Mr Blackburn replied: " Let's start the system tomorrow because that is when all the new properties are received ". Mr Ilias replied: " That's fine. Let's start tomorrow ." Mr Quinteros' statement indicated that he heard Mr Blackburn's side of this conversation. According to Mr Quinteros he arrived at the Delfin Realty Information Centre at approximately 9.00am. Mr Parker arrived at about 9.10 and the following conversation ensued: Parker: The tenants of a property are coming in this morning to secure the property. Quinteros: That is my sale because I handled the enquiry with Mr Beine and put everything together. I should claim the sale. Parker: This is my sale and I will get the commission. Quinteros: How can you say that when you clearly know that it is mine. Mr Quinteros subsequently had a conversation with Mr Ilias to the following effect: Quinteros: Chris believes that the sale of a property in Holdsworthy is his. You clearly know that it is mine. I have been working on it all along and by the way Chris Parker smells of alcohol and I think he has been drinking. Ilias: We will try and attempt to work this out Victor. Subsequently at another Delfin Sales Information Centre Mr Quinteros met up with Mr Parker and Mr Ilias and according to Mr Quinteros Mr Ilias said : " I will get John Blackburn to handle the matter. The argument will be settled on Monday by the Project Manager ". Mr Ilias then left and Mr Quinteros and Mr Parker continued the argument which, according to Mr Quinteros, went as follows: Parker: I will consider that if a Spanish call comes in it is for you and it will be your enquiry. Quinteros: This is a multicultural country so any call should be treated the same, but if it is a personal call then it is not an enquiry. Parker: I will consider it as an enquiry. Quinteros: The next enquiry is mine. Parker: It is not yours. I am going to drop you. A physical altercation then ensued. By Mr Quinteros' own statement the incident arose out of a dispute as to who was to get the commission arising from a sale: it did not arise out of a dispute with racial overtones. It was a dispute between two salesmen over a commission. Mr Parker's recollection of the incident was as follows: When I arrived at the Wattle Grove office about 9 o'clock on that Saturday, 10 July 1993, John Blackburn had a conversation with me in words to the following effect: Blackburn: Victor Quinteros has opted out of the system of sharing of the sales. He is going out and making his own sales. Parker: What about you and me? Blackburn: I am happy to continue sharing if you are. Parker: We will continue sharing. Thereafter he went to Mr Quinteros and had the following conversation: Parker: I have a deposit coming in this morning (I identified the property which I do not now recall). The name of the clients are (I identified the clients but I do not recall their names). Quinteros: I have spoken to them. They are my clients. It's my sale and I am going to see Arthur Ilias about it. Mr Ilias then, according to Mr Parker, came downstairs and the following conversation took place: Ilias: Victor tells me you have a deposit coming in this morning. He says that they are his clients and his sale. Parker: Everything appears to be Victor's sale. Even Mr Beine's property where I took the inquiry, showed the property and took the deposit. When is it not Victor's sale? I have arranged for them to bring the deposit in today. I have told Victor about it because I do not want him claiming this sale. Ilias: It is a ballot day. We are very busy. I nominate John Blackburn to take the deposit and fill out the sales advice and we will adjudicate whose sale it is on Monday. Subsequently, according to Mr Parker, Mr Quinteros walked into the office and lent against the wall blocking the doorway, and Mr Parker said to him: Don't expect to hog all the inquiries Victor and you can stand away from the door. Thereafter the following exchange took place: Quinteros: I will take any enquiry that I want to. Parker: No you won't Victor Quinteros: What are you going to do about it? Parker: Back off Victor Quinteros: What are you going to do about it? What are you going to do about it? Then followed the physical altercation. The altercation was observed by a Mr Falconer who was an independent witness. After the incident Mr Quinteros drove to the Holdsworthy Police Station to report the matter. The police, in the event, took no further action. He then went to his doctor who told him not to go to work for two days and gave him a medical certificate. On Monday 12 July Mr Quinteros returned to work. He was called to a meeting with Mr McNamara, Mr Carlsson and Mr Ilias. After a brief meeting he was asked to leave the room and Mr Parker was called in. On being invited to rejoin the meeting Mr Quinteros was informed that he had been suspended on pay for two weeks. Mr Parker was in fact likewise suspended. Mr McNamara's statement in relation to this meeting was as follows: Thereafter I decided that since Mr Falconer was not available and that he was independent witness, any decision should be deferred until we had the chance to speak with Mr Falconer. I decided, and the other two agreed with me, that the best thing would be to suspend both on full pay for two weeks until this matter was resolved. After seeing Mr Falconer, Mr McNamara's statement continues: On the basis of Mr Falconer's account I formed the view that Mr Quinteros was the aggressor and that his behaviour was unacceptable to the company. I do not believe that at that stage I had decided what I was going to do about it. I was conscious of the need to do the "right thing" and therefore, prior to taking any action, I referred the matter to the company's solicitors for advice. I believe I did this on 13 July 1993. Mr Quinteros made much of demanding the reasons for his suspension and admittedly the letter signed by Mr McNamara dated 12 July made no specific mention of the altercation between he and Mr Parker, but the circumstances were such that the reasons for the suspension were, in the view of the Tribunal, self-evident. An identically worded letter was also sent to Mr Parker. There was some argument at the hearing turning on the point that the copy of the letter to Mr Parker, annexed to Mr McNamara's statement, was unsigned. The Tribunal, however, has no reason to doubt that Mr Parker received the same letter as Mr Quinteros. In the view of the Tribunal the suspension of both parties to the altercation was, in the circumstances, eminently reasonable and in any event could not conceivably be construed as an act of racial discrimination. On 14 July Mr McNamara had a meeting with Mr Quinteros at the latter's request at which, according to Mr McNamara, the following exchange took place: McNamara: Victor your conduct was unprofessional and unacceptable to this company. Quinteros: Yes I accept that. A thousand people from my country will behave in the same manner. It is part of our culture. McNamara: When you work for Delfin you have to adopt the culture of our company. Quinteros: I am not happy with the suspension. You can't suspend me. I am staying here to work. McNamara: You can't. You are on suspension until this matter is resolved. Quinteros: My licence is on the wall downstairs. So I am working. McNamara: Well, take your licence down when you leave the premises. Quinteros: I am not leaving. You will have to get the police to remove me. McNamara: I am asking you for the last time to leave the premises and not come back until we have had time to resolve the suspension matter. Quinteros: I won't go. McNamara: You employment is terminated. You no longer work for Delfin Realty. We will be in touch with you. Subsequently the following exchange took place: Quinteros: Why have you terminated me? McNamara: I asked you three times to leave the premises and you disobeyed me. I have dismissed you for insubordination. Mr Quinteros's statement, in Annexure D thereof, relates to this meeting but is not very specific, although it does make clear that when Mr Quinteros asked for the grounds of his termination Mr McNamara replied: " Because of your conduct ." Mr Quinteros then asked: " What conduct? " to which Mr McNamara replied: " Your conduct and the conduct of the event reported to me by Arthur Elias (sic), Chris Parker and the witness ". Mr McNamara wrote to Mr Quinteros on 14 July informing him that his employment had been terminated with effect from 26 July 1993. The Employment Separation Certificate issued by the Respondent indicated that Mr Quinteros' employment had been terminated on the ground of " unsuitable for this type of work " rather than " misconduct " because, according to Mr McNamara, of concern for Mr Quinteros' chances of obtaining subsequent employment elsewhere. The evidence does not suggest to the Tribunal that Mr Quinteros' dismissal was in any way an act of racial discrimination by the Respondent. The reference to " culture " in the exchange between Mr McNamara and Mr Quinteros, referred to above, was, in the view of the Tribunal, of no significance in this context. Mr Quinteros was dismissed for insubordination. The Tribunal therefore finds that the dismissal of Mr Quinteros by the Respondent was not an act of racial discrimination. The onus of establishing a complaint lies on the Complainant and considering all the incidents to which Mr Quinteros refers the Tribunal finds that he had failed to substantiate his complaint of racial discrimination in the area of employment. His complaint is therefore dismissed. Both parties sought costs. In the view of the Tribunal this is not a case which falls within the guidelines for the exercise of the Tribunal's discretion in this matter. No major problem of law was involved, and although the hearing was somewhat protracted this seems to be been due largely to the Complainant's determination to leave no stone unturned in his endeavour to make out a case. That he was unsuccessful in doing so does not justify, in the Tribunal's view, any award of costs. 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.