Equal Opportunity Tribunal of New South Wales CITATION: Morian -V- South Western Sydney Area Health Service [1996] NSWEOT COMPLAINANT: Ms Nadia Morian RESPONDENT: South Western Sydney Area Health Service NUMBER: 44 of 1995 Mr G Bartholomew ( Judicial Member ) TRIBUNAL: Ms L Mooney Mr O MacDonald GROUNDS OF COMPLAINT: Discrimination on the ground of race in the area of employment DATES OF HEARING: 11/01/1995; 11/03/1995 DATE OF JUDGMENT: 02/23/1996 Complainant: Mr J Biady Teece Hodgson & Ward LEGAL REPRESENTATIVES: Respondent: Ms J Redfern Hunt & Hunt Lawyers JUDGMENT IN FAVOUR OF: Bartholomew: The Complainant, Dr Nadia Morian, is an Australian citizen of Egyptian national origin with medical qualifications obtained in Egypt. She sought, on the basis of her Egyptian qualifications, to be recognised as a specialist pathologist in Australia. To this end she accepted a position with the Respondent which was described as that of an honorary trainee pathologist. The Respondent is the South West Sydney Area Health Service. Dr Morian lodged a complaint with the Anti-Discrimination Board on 10 June 1993 alleging discrimination on the ground of race in the area of employment by the Respondent. The Board, having failed to resolve the complaint by conciliation, referred the matter to the Tribunal on 19 May 1995. The matter was set down for directions on 11 July 1995 and on that occasion was set down for hearing on 1 and 3 November 1995. During the course of the hearing, it appeared that the Respondent was going to raise an objection on the ground that the Complainant had not been employed by the Respondent. This objection was not raised as a preliminary point because both parties wished the Tribunal to hear the evidence before deciding the matter. The Tribunal has first, therefore, to decide the jurisdictional point that the Complainant was not employed by the Respondent and that therefore the Tribunal had no jurisdiction to hear the complaint. The Judicial Member having ruled that the question as to whether the Complainant was employed by the Respondent for the purposes and within the meaning of the Anti-Discrimination Act was, being a question of statutory interpretation, a question of law, the decision on this matter is that of the Judicial Member alone. Two questions arise: first, whether there was a contract between the parties, and second, if there was, was the contractual relationship one of employment? The Complainant, in submitting, first, there that there was a contractual relationship argued that, on the facts, there was offer and acceptance, consideration and intention to create legal relations. That there was offer and acceptance seems clear. The Respondent, acting through Professor Davies, sent a letter dated 18 February 1993 to the Complainant thanking her for her application dated 14 December 1992 and offering her, on behalf of the Board of the Area Health Service, an appointment as an honorary trainee in pathology for a period of 12 months commencing from the date when she took up the appointment. Attached to this letter was a document which appeared to be a slightly modified version of the Job Description document relating to Registrars, and which contained the following statement under the heading "Summary of Duties": "Contribution to Anatomical Pathology Service under staff specialist supervision of professional services, including provision of reports in accordance with Departmental Policy." Dr Morian accepted the offer and her appointment commenced on 13 April 1993 under the immediate supervision of Dr Fernando and the ultimate supervision of Professor Davies. Dr Fernando placed Dr Morian on the roster for duty. That there was offer and acceptance, therefore, appears not to be in doubt. The question as to consideration also presents little difficulty. The Complainant's appointment was admittedly an honorary one, and the letter of appointment made it clear that she would receive no remuneration. Yet, from the Complainant's point of view, the satisfactory completion of the appointment was a sine qua non for her recognition as a specialist pathologist in Australia. From the Respondent's point of view, the Complainant was filling a supernumerary position within the Department and was therefore an additional pair of hands, albeit that she was subject to supervision. As the description of her position made clear, she was to contribute to the Anatomical Pathology Service, that is to say, the Department would receive some benefit from her being there. There can, in my view, be little doubt that there was consideration to support the agreement. That there was an intention to create legal relations is equally clear. The conditions of her appointment, as set out in the document attached to the letter of 18 February 1993 sent to her by the Respondent, included the statement: "Documented out of pocket expenses incurred in the course of duty will also be reimbursed on the same basis that payment is made to Registrars employed in this Department of the Pathology Service." It is hard to believe that this was not intended to create an enforceable obligation. I conclude that the parties intended to create a legal relationship. I further conclude that there was a contract between the Complainant and the Respondent. The remaining question is whether this was a contract of employment within the meaning of and for the purposes of the Anti-Discrimination Act. This question presents more difficulty. Section 4(1) of the Act merely provides that "employment" includes work under a contract for services. This is not very helpful since the courts, seeking to define "employment" in other contexts, have been primarily concerned to distinguish between a contract of service (employment strictly so called) and a contract for services, for which purpose the courts evolved the test of the degree of control. Thus in Stevenson Jordan and Harrison Ltd v McDonald and Evans [1952] 1 T.L.R. 101 Lord Denning said: "This case raises the troublesome question of the distinction between a contract of service and a contract for services. The test usually applied is whether the employer has the right to control the manner of doing the work. Thus in Golling v Herts County Council, Mr Justice Hilbery said: 'The distinction between a contract for services and a contract of service can be summed up in this way: In one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done but how it shall be done'." This, however, is useless for the purposes of the Anti-Discrimination Act which, as noted above, includes contracts for services together with contracts of service within the concept of employment. Since there was, in my view, clearly a contract between the parties, the question arises: if it was not a contract of employment, what sort of contract was it? The Respondent argued that it was a contract for the provision of assessment or training to allow the Complainant the opportunity to obtain recognition as a specialist pathologist. The Complainant was a pathologist with overseas qualifications. She was not seeking to be trained as a pathologist but to have her skills as a pathologist assessed. This was to be done by a process of on-the-job assessment by Dr Fernando and Professor Davies who would, after the expiration of one year, report to the College. The training component of her position was limited to familiarisation with the conventions of Australian laboratory practice, as Professor Davies put it, so that her position must be seen as essentially one of on-the-job assessment, and the question is whether holding such a position constitutes employment. The Respondent relied on Wiltshire Police Authority v Wynn [1981] 1 Q.B. 95 in which the issue was as to the status of a police cadet, that is to say, whether a police cadet in England was employed for the purposes of the (English) Trade Union and Labour Relations Act. The English Court of Appeal held that the Respondent in that case was not an employee. Lord Denning M.R. stated in his judgment considering the distinction between a contract of service and a contract of apprenticeship: "The courts drew a distinction according to which purpose was the primary purpose: and which was secondary. If the primary purpose was work for the master - and teaching a trade was only a secondary purpose - it was a contract of service. But if teaching a trade was the primary purpose - and work for the master was only secondary - then it was a contract of apprenticeship." His Lordship continued: "The distinction between the cases where teaching and learning is the primary purpose - and the cases where the work done is the primary purpose - is helpful in the present context. Applied to the case of a police cadet, it seems to me that throughout the cadetship, the primary purpose is to teach and to learn - not a trade - but as part of general education. It is divided into two phases. In the first year he or she is being given further education. In the second year he or she is there to watch - to see how things are done. We were told that sometimes they help in a minor way: such as holding the tape when there is a measurement to be taken after an accident, or something of that kind. They are giving minor assistance in the work. They are not being taught a trade such as would make them an "apprentice". They are not doing work for the employer so as to be under a "contract of service". They are neither apprentices nor servants. They are in a class by themselves - police cadets." This case, in my view, can be clearly distinguished from the situation in the matter currently before me, first because of the special status of the police in general, a point to which Lord Denning referred when he stated: "In conclusion I would say that a police constable occupies a very special position in our system. In Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1955] A.C. 457, 489-490 Viscount Simonds said: '... there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the state which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract'." Second, there was in the English legislation a specific exception for the police service from the application of the Trade Union and Labour Relations Act, and although police cadets were not members of the police service, nevertheless, as Lord Denning pointed out, the regulations relating to police cadets were similar to those regarding probationary constables, and his Lordship then added: "It cannot have been intended that police cadets should have recourse to industrial tribunals and probationary constables should not. The only reasonable inference is that both police cadets and probationary constables are on the same footing. Their dismissal is governed by the Police Regulations - and not by the general Acts regarding employment." Third, police cadets were young persons who were continuing their education in a police environment prior to joining the police service. The Complainant in the present matter is a pathologist with overseas qualifications who is seeking assessment of those qualifications. I find no support for the Respondent's submission in Wiltshire Police Authority v Wynn. The same comments apply to In the Matter of the Commissioner of Police (1984) EOC 92-017 upon which the Respondent also relied and which also involved the special position of police cadets and recruits. The Respondent also relied on Dietrich v Dare (1980) 30 ALR 407. In this case there was an arrangement between the "complainant", who suffered from certain disabilities, and the respondent, under which the "complainant" was to undergo a trial period to determine whether he was capable of painting the exterior of the respondent's house satisfactorily for a nominal remuneration of $2 per hour. The "complainant" fell and suffered injury for which he sought workers compensation. The High Court held that there was neither a contract of service nor a contract for services. With regard to the former, the High Court held that there was no mutuality of obligation: "Nor are we persuaded that the arrangement gave rise to a contract of service. It seems to us that the arrangement lacked the element of mutuality of obligation that is essential to the formation of such a contract. A contract of service is of its nature a bilateral contract. It may be conceded that merely to say that the parties had agreed upon a trial does not necessarily rule out its formation. The answer in that respect will depend upon the detail of the arrangement. In particular, the answer will be affected, among other things, by the discovery in the arrangement of the assumption by the "worker" of an obligation to perform some work, it being the purpose of the trial to determine whether the work is performed in a satisfactory manner. But in the present case we cannot discover an obligation on the appellant to perform any work at all." Murphy J., dissenting, held that there was in this case a contract of service. This case can also, in my view, be distinguished. The High Court took the view that the "complainant" in that case had no obligation to perform any work at all. The Complainant in the case before me had duties to perform, the performance of which were an integral and necessary part of the assessment she sought. She might, of course, have terminated the contract at will, after whatever period of notice was deemed appropriate, if any, but while the contract subsisted her duties were performed under its terms. It is true that, according to the evidence, the Complainant, after her return from sick leave, was relieved from her duties and instructed only to observe, but this could not have altered the nature of the contract under which she originally took up the appointment. In my view, Dietrich v Dare can be distinguished on the basis that there was in the matter before me sufficient mutuality of obligation to suggest that there was a contract of service. The Complainant relied on Rowe v Capital Territory Health Commission (1982) 39 ALR 39 which raised the question as to whether student nurses were employed by the respondent Health Commission. The Federal Court held that they were so employed. The point at issue was whether the fact that they were receiving training ruled out the possibility that they were employed. On this point Keely J. stated: "That contention assumes that the two concepts of "learning experience" and "ward service" are mutually exclusive. In my opinion the one activity may be both part of a "valid clinical experience" and also "service to the ward" whether it be taking the temperature, pulse or blood pressure of a patient, attending to his hygiene, his bed-making and pressure care, to his pre-operative or post-operative care in all its aspects or working in the operating theatre as either a "scrub" or a "scout" nurse. That which is a "valid clinical experience" looked at from the point of view of the student nurse may also be part of "ward service" looked at from the point of view of the respondent commission's obligation to provide "health services" to patients in its hospitals. In my opinion, those tasks were "ward service" when they were tasks which, if not performed by her, would have been performed by a trained sister or a nursing aide - and so performed because the task was a necessary part of the general nursing care required to be given by the respondent commission to its patients." If student nurses are employed then it would seem to me that overseas qualified "trainee pathologists" are a fortiori also employed. I also note that both the letter of appointment dated 18 February 1993, and the description of the position to which the Complainant was appointed which was attached thereto, stated that "a Workers Compensation premium will be paid by the Area Health Service". This is significant because the two key concepts underlying workers compensation - "worker" and "injury" - are defined in terms of either employment or contract of service. Thus section 3 of the Workers Compensation Act defines "worker" as: any person who has entered into or works under a contract of service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied or is oral or in writing; whilst section 4 defines "injury" as: personal injury arising out of or in the course of employment. This suggests that the Respondent was of the view that they were employing a person, for, otherwise, such a provision in the letter of offer would have been meaningless. Any residual doubt on this matter should be resolved in favour of the Complainant by reference to the argument, also relied upon by the Complainant, that the Anti-Discrimination Act, being remedial legislation, should be interpreted liberally so that parties are not excluded from the provisions of the Act by technically based constructions. It is sufficient in this context to refer here to the proposition laid down by Isaacs J. (dissenting) in Bull v Attorney-General (1913) 17 CLR 370 which has been so frequently invoked: "In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow." I am of the view that the Complainant in this matter was employed by the Respondent for the purposes of and within the meaning of the Anti-Discrimination Act and that therefore the Tribunal has jurisdiction to hear her complaint under the provisions of the Act. Tribunal: The full Tribunal, therefore, turns to consider the substance of the complaint. Before undertaking this it is convenient to set out the history of Dr Morian's relationship with the Department. She commenced duty on 13 April 1993. After the first week she took sick leave because of an attack of asthma due, according to the Complainant, to the formalin used in the laboratory. She was off sick for seven days and returned on 28 April. During this first week the Complainant, according to Dr Fernando's evidence, was arriving late. She accounted for this by explaining that, because of domestic difficulties caused by the fact that she had a young child, she was unable to arrive on time, and she asked whether she could work between the hours of 10 am and 2 pm. Dr Morian's evidence was that she had raised her problem with Professor Davies earlier, who accepted that there might be a need for some flexibility in her working arrangements, but Professor Davies, in his statement of evidence, stated that had he known that Dr Morian proposed arriving so late on a regular basis he would have advised her that this was not acceptable as it would not meet the requirements of her training and would preclude her from participating in the roster of the registrars of the Department. When the Complainant returned from sick leave, Dr Fernando spoke to her about her hours, excluding her from the roster and telling her merely to observe operations in the Department. According to Dr Fernando, she said to the Complainant: "If you intend to be assessed for your fellowship in this Department, you must keep to Departmental working hours. I suggest that we take you off the roster until you solve your domestic problems. Until then you can observe cut-ups and acquaint yourself with the general running of the Department." This Dr Fernando confirmed in a memorandum to Dr Morian dated 4 May 1993. On 6 May 1993, according to the Complainant's statement, Dr Morian approached Dr Fernando and complained about two matters; first, that she did not have a standard chair, and second, that offensive comments were being made about her. The approach to Dr Fernando was apparently made at the suggestion of Professor Davies to whom Dr Morian had earlier spoken regarding the disparaging remarks alleged to have been made by Dr Fernando and others. On 18 May 1993 there was a meeting of staff specialists in the Department, and the minutes of that meeting include the following item: "All staff specialists expressed their dissatisfaction with the standard of work of Dr Morian. Dr Fernando had already had discussions with Professor Davies. It was felt unanimously by all that her standard of work was below the level of a pathology trainee. Dr Fernando pointed out that that she was not punctual. Drs McKenzie and Brewer pointed out that she had difficulties in communicating. Prof. Davies informed the staff that he had already mentioned to her that her English is not up to standard. He will interview her in early June. In interim it was decided that she be allowed to remain as an observer. She will not be rostered to carry out any registrar duties. A decision will be made and he will write to the College of Pathologists." On 1 June Dr Bousfield (nee Moraleda), one of the Registrars, wrote to Dr Fernando raising concerns about Dr Morian's behaviour. On 11 June Professor Davies had a meeting with Dr Morian to discuss her progress. Dr Morian alleges that Professor Davies said that: "You do not have to come to work any more, no one in the Department wants to work with you." This is denied by Professor Davies, who alleges that he told Dr Morian that he would investigate the matters she raised. At the end of the meeting Dr Morian informed Professor Davies that she had made a complaint against Dr Fernando to the Anti-Discrimination Board. Professor Davies, however, decided to attempt to deal with the matter under the formal grievance resolution procedures and he suggested to Dr Morian that she not attend the Department until the matter was resolved. Professor Davies, in accordance with his decision, sent a memorandum to Dr Morian inviting her to a meeting on 18 June with himself and Dr Fernando, attaching thereto a document outlining the Department's grievance procedure. Dr Fernando declined to attend to meeting although Dr Morian, according to her statement of evidence, did attend. At the conclusion of the meeting, according to Dr Morian's statement, Professor Davies said to her words to the effect: "I will have to report this to my supervisor. From now on you are suspended." Professor Davies denied using the term "suspended". The Tribunal noted that both Professor Davies and Dr Morian appear to be confused as to the meetings on 11 June and 18 June, but the account given above seems to be as likely an account as any. By July Professor Davies had formed the view that the situation was irretrievable and on 3 August he met Dr Morian again and, according to his own statement, said words to the following effect: "It seems that we can't resolve this matter. Given the way things have turned out, I believe it would be best if we discontinued the traineeship. The relationship in the Department has broken down and you are not getting any benefit from the training. The staff are not happy with your work and to coerce parties into accepting a situation would make the situation worse in my view. I will not put in any report to the College in relation to your ability as a pathologist as your period of training and assessment has not been completed." and on 17 August Professor Davies wrote to the Complainant in the following terms: "Having regard to the situation which has developed in the Department of Pathology, SWAPS, it was agreed that resolution of the issues to the satisfaction of all concerned was unlikely and therefore the only realistic option is to regard your traineeship with the Department as now being ended." With the above by way of background the Tribunal turns to consider the substance of Dr Morian's complaint of racial discrimination in the area of employment. The substance of the complaint, as set out in paragraph 9 of her Statement of Claim, comprised three points, namely, that during her employment she was: (a) subject to numerous derogatory comments from Dr Fernando and other staff about her skin, about her smell, about her perspiration and about her ethnicity; (b) subject to comment that overseas doctors are not to be trusted; and (c) was not provided with the same equipment as other registrars and technicians in the pathology department. In her statement of evidence, the Complainant elaborated upon and added to these matters. Turning to the complaint about equipment first, this appears from Dr Morian's statement of evidence to be a complaint that, when she first commenced her appointment, she was not provided with an ergonomic chair as was provided for the other registrars, whilst in the statement of Dr Fernando in relation to this matter, Dr Morian's complaint also related to the microscope with which she was provided. Her concern with the chair arose from the fact that she had previously fractured her spine and had a prolapsed disc and she feared sitting in an office chair would aggravate her spinal injury. She complained to Dr Fernando about the chair and microscope, who replied, according to Dr Fernando's statement, with words to the effect: "I didn't know you had a back problem. I'll speak to Stephen about getting you another chair and microscope." According to Dr Morian's own evidence, she was subsequently duly supplied with an acceptable chair. Whether she received another microscope is not altogether clear, but such evidence as there was suggests that she did. The Tribunal cannot accept this complaint as evidence of racial discrimination. The Tribunal accepts that the chair with which she was originally supplied was not adequate, but once she complained she was supplied with a proper chair. The fact that the original chair was not adequate appears to be no more than an administrative matter that was corrected as soon as she raised it. This complaint the Tribunal therefore rejects as evidence of racial discrimination. A further complaint which appears in Dr Morian's statement of evidence, but not in her Points of Claim, was that soon after she commenced with the Department Dr Fernando said to her: "There are some important papers that you must take to personnel. One of the girls will give them to you." Having received the papers, Dr Morian did not take them to the personnel section because she then took seven days sick leave. Upon her return from sick leave she took the papers to the personnel section only to be told: "This is just a copy of your file, we have already got it. Do you have a problem in your department. If you do let me know." This the Complainant took as a practical joke played upon her by Dr Fernando. This again the Tribunal cannot accept as either evidence of racial discrimination or indeed as necessarily a practical joke. The fact that the Complainant did not take the papers to the personnel section until after she returned from sick leave might suggest that during that time the personnel section had obtained copies from another source, and Dr Morian does not appear to have raised this matter with Dr Fernando when she returned from the personnel section. In any case, there is not the slightest evidence to suggest that this was an act of racial discrimination. To return to the Points of Claim, a further complaint was that Dr Fernando said in the presence of another doctor, Dr Corinne Smith: "I do not trust overseas qualifications. I do not know where they come from." Both Dr Fernando and Dr Smith deny that this was said, whilst Dr Fernando, in her own statement of evidence, pointed out that she was herself an overseas graduate and indeed played a part in establishing the Overseas Medical Graduates Association, which is an association for the support of overseas medical graduates. The Tribunal further notes in this connection that Dr Bousfield, who was also an overseas graduate, appears to have had no difficulty with Dr Fernando. The Tribunal is unable to accept that Dr Fernando made this remark in the form in which Dr Morian recollects it. The Tribunal therefore turns to what is perhaps the most substantial complaint, namely, that Dr Fernando and other unnamed members of the Department made derogatory remarks about her. There was no evidence whatsoever on this point against any of the other registrars or technicians, apart from an unnamed technician who is alleged to have said: "Arabs are dirty people, she didn't have a bath today", and the allegation that "no-one wants her here" which may derive from a statement attributed to Professor Davies which he denied saying and which in any case could not by any stretch of imagination be regarded as racial. The Tribunal therefore considers this matter as allegations against Dr Fernando alone. These remarks as set out in paragraph 24 of Dr Morian's statement were that Dr Fernando said: She's got funny skin She smells It's smelly in the laboratory She's fat No-one wants her here She sweats a lot. Dr Fernando denied making any of the above statements. Dr Fernando, referring to paragraph 21 of Dr Morian's statement in which Dr Morian alleges she heard Dr Fernando say to two registrars in the laboratory: "She has funny skin. She is fat and smelly", said in her own statement: "I recall I had a conversation in the registrars room with one of the registrars about a decomposing body which was in the nearby autopsy room. The smell of the body came into the registrars room and I commented to the registrar that the body was that of a 'fat female and was smelly' and that 'an appropriate autopsy table needs to be organised for those cases' or words to that effect.... I believe it may have been possible that Dr Morian overheard this comment and believed that it was directed at her. It most certainly was not." There was also some evidence as to the failure of the air-conditioning at this time which may have exacerbated the situation on this occasion. The Tribunal takes the view that the allegations that Dr Fernando made remarks about the Complainant being fat and smelly have not been substantiated. Dr Fernando's explanation is perfectly convincing, and the Tribunal accepts it. The Tribunal also rejects the complaint that Dr Fernando said that Dr Morian had "funny skin". On Dr Morian's evidence she suffered from eczema, but that a highly qualified and experienced doctor, such as Dr Fernando was, would refer to such a condition as "funny skin" seems to the Tribunal to be highly improbable. Dr Fernando denied saying, and Professor Davis denied hearing Dr Fernando say to him, that "Dr Morian sweats a lot". A further complaint, which was referred to in paragraph 27 of Dr Morian's statement but not in her Points of Claim, was that on 11 June a doctor named Elizabeth left her tea next to Dr Morian. When she returned to drink the tea Dr Fernando is alleged to have said: "Take care of your tea, it might be contaminated". This Dr Fernando denied in her own statement. Dr Morian assumed that the statement referred to the fact that she was present, although the statement, even if it was made, had no necessary reference to her. The Tribunal cannot accept that this constitutes evidence of racial discrimination. The impression formed by the Tribunal is that the Complainant is a person who tended to assume, without any necessary justification, that remarks made by other people necessarily had reference to her and were derogatory. In the view of the Tribunal, the Complainant has failed to substantiate her complaint that the remarks she alleges were made by Dr Fernando constituted acts of racial discrimination. The Tribunal finds that the termination of the Complainant's position with the Department was not an act of racial discrimination. The Complainant's position was terminated because, as Professor Davies put it, the relationship between Dr Morian and the Department had broken down and there was no longer any possibility of the Complainant deriving any benefit from the arrangement. The Tribunal finds that the Complainant has not substantiated her complaint. The complaint is therefore dismissed. 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