Equal Opportunity Tribunal of New South Wales CITATION: Egan -V- Ramsey Meats Pty Limited (In Liquidation), Long And Parker [1997] NSWEOT COMPLAINANT: Esperanza Egan RESPONDENT: Ramsey Meats Pty Limited (in liquidation) NUMBER: 143 of 1996 Mr Simon Rice ( Judicial Member ) TRIBUNAL: Ms Suellen Bullock Mrs Jane Strickland GROUNDS OF COMPLAINT: Race, sex (and sexual harrassment) discrimination and victimisation DATES OF HEARING: DATE OF JUDGMENT: 12/01/1997 Complainant: Mr A Whyburn R L Whyburn & Associates (Solicitors) LEGAL REPRESENTATIVES: Ms J Keys (Counsel) Respondent: Mr R J Gilleland (Solicitors) JUDGMENT IN FAVOUR OF: NON-PUBLICATION ORDER On 3 June 1997 the Tribunal ordered, pursuant to s110A of the AntiDiscrimination Act (NSW), that there is not to be published the name of any company of which the third respondent Mr Parker is currently general manager or any information that may indicate the name of any such company. That order has not been revoked and remains in place. Background Part 1. Nature of Claim 101. The Complainant Ms Esperanza Egan (Ms Egan) has complained that she was subject to discrimination on the ground of : i. her race in the conditions of her employment ii. her sex in the conditions of her employment iii. her sex, specifically sexual harassment iv. her race by dismissing her v. her sex by dismissing her and also subject to vi. victimisation, by being dismissed. 102. She has named as respondents to her complaint: i. her employer at the time, Rainbow Systems of Australia Pty Limited ("Rainbow Systems") now known as Ramsey Meats Pty Limited (in liquidation) ("Ramsey Meats"), ii. Mr Brian Long who was General Manager of Rainbow Systems at the relevant times, and iii. Mr Stanley Parker who was Managing Director of Rainbow Systems at the relevant times. Part 2. Chronology 201. Ms Egan commenced her employment with Rainbow Systems on 26 April 1995. The last day of her employment was 31 May 1995. 202. Ms Egan complained to the Anti-Discrimination Board by letter received by the Board on 13 June 1995. The Board referred Ms Egan's complaint to the Equal Opportunity Tribunal on 11 July 1996. 203. The hearing was conducted on the 2nd and 3rd of June 1997, and on 25 July 1997. PART 3. PARTIES The Complainant 301. The Complainant, Ms Egan, was born in Colombia, South America. Her first language is Spanish. In the course of giving evidence Ms Egan impressed the Tribunal as a thoroughly fluent and relaxed speaker of English, with some accent, and as having no difficulty in aural comprehension of English. 302. In Columbia Ms Egan completed a Bachelor of Arts in Education, including the teaching of English as a second language, at the University of Bogota. She worked as a Personal Assistant in a company in Columbia for a year and a half, becoming a shareholder and then owner of the company whose business was the professional translations of English into Spanish and Spanish into English. 303. Ms Egan migrated to Australia in early 1993, having a contract to translate educational materials from English into Spanish. Her evidence is that this was a responsible position requiring not only translation, but liaison with third parties and project management. 304. On completing the contractual assignment within approximately one year, Ms Egan was not in paid employment for some time while pregnant and caring for her first child. In October 1994 she obtained Level 3 Accreditation with NAATI as a translator and interpreter, described on the certification document (Exhibit C2) as "the first professional level (representing) the minimum level of competence for professional interpreting". 305. She had commenced a Diploma in Journalism, which was awarded in December 1995. It is relevant to note that in enrolling for the Diploma in Journalism, she was given exemption from studying topics related to Word Processing. 306. Ms Egan elected to return to the paid workforce in early 1995, at which time she applied for a job with Rainbow Systems. She commenced employment there on 26 April 1995. 307. Since leaving Rainbow Systems Ms Egan has been employed as Personal Assistant, then as a magazine editor, and currently as a production editor for a book publisher. First Respondent 308. Rainbow Systems was, it is not in dispute, Ms Egan's employer at the relevant times. Knowledge of its corporate history is gained from exhibit G, records of the Australian Securities Commission, which were admitted without objection. This Exhibit replicates the material found at Tab 5 of Exhibit A, the President's Report. 309. Rainbow Systems commenced its registration with the ASC on 12 November 1984. At the date of its last return the Directors were shown to be Stanley Parker (the Second Respondent), Wayne Parker, Teresa Parker and, to 23 July 1993, Michael Parker. Stanley Parker held one share in Rainbow Systems, and Stanley Parker Holdings Pty Limited held 99 shares. 310. On 4 March 1996 Rainbow Systems changed its name to Ramsey Meats Pty Limited ("Ramsey Meats"); a winding up order was made in respect of Ramsey Meats on 11 April 1996 on which date a liquidator was appointed. 311. ASC records (Exhibit H) show that Stanley Parker Holdings first registered with the ASC on 10 July 1986. The most recent return filed shows the Directors to be Teresa Parker and Paul McMahon. The same records show the majority shareholder of Stanley Parker Holdings to be Stanley Parker with 98 shares; Wayne Parker and Theresa Parker held one share each. A winding up order in relation to Stanley Parker Holdings was made on 11 April 1997, and a liquidator was appointed on that date. 312. It is Mr Parker's evidence that he is no longer a director of Ramsey Meats, formerly Rainbow Systems. In his evidence he drew attention to a warning on the ASC documents to the effect that: "Care should be taken when using this information. It may have changed since the most recent annual return was processed by the ASC." Mr Parker commented on the fact that the ASC records show him as a director and shareholder, saying "this information's not right". 313. There is no dispute that: i. Rainbow Systems was Ms Egan's employer at the relevant time ii. Rainbow Systems changed its name to Ramsey Meats iii. Ramsey Meats in now in liquidation 314. At a Directions Hearing on 23 April 1997 the Tribunal noted that in documents filed Ms Egan indicated an intention not to proceed with the complaint against the First Respondent, Ramsey Meats. The legal representative for Mr Long and Mr Parker, the Second and Third Respondents, said that those parties would not argue that Ramsey Meats should remain a party to the proceedings. The Tribunal invited Ms Egan, and Mr Long and Mr Parker, to reflect on whether they wished Ramsey Meats to remain a party to the proceedings, and reserved any decision on that point until the hearing. 315. At the hearing, Counsel for Ms Egan spent some time in evidence clarifying the corporate history of Ramsey Meats, which is outlined above. The purpose of this endeavour, Counsel for Ms Egan submitted to the Tribunal, was to "establish that the First Respondent is in liquidation and also that the ultimate holding company is similarly in liquidation. It's just making sure that those possibilities are closed for the Complainant". Counsel for Ms Egan confirmed that it was not Ms Egan's intention to pursue a remedy against Ramsey Meats. Neither Mr Long nor Mr Parker sought, through their legal representative, to maintain Ramsey Meats as a party to the proceedings. 316. The role of Ramsey Meats is nevertheless relevant should the Tribunal find it necessary to consider the operation of Sections 52 (Aiding and Abetting etc) and 53 (Liability of Principals and Employers) of the AntiDiscrimination Act ("the Act"). This is dealt with further below at Part 9. Second Respondent 317. Mr Long was General Manager of Rainbow Systems at the relevant times. He reported to Mr Parker, and was effectively Mr Parker's senior employee. Since 20 January 1997 he has not been employed by Rainbow Systems or any of Mr Parker's group of companies, and now works as a consultant. 318. Mr Long interviewed Ms Egan for her job with Rainbow Systems and was her principal supervisor. Ms Egan performed duties for both Mr Long and Mr Parker and reported in some degree to both of them, although the precise proportion of allocation of duties is in dispute even between Mr Long and Mr Parker. Whatever the proportion of work done for either of them, it is clear that Ms Egan's most regular reporting was to Mr Long. Third Respondent 319. Mr Parker's position with Rainbow Systems is described above at paragraphs 309 to 312 His position as supervisor of Ms Egan is described above at paragraph 318. He was effectively the senior person at Rainbow Systems, and Mr Long reported to him. 320. It was Mr Parker's evidence that he was effectively the chief executive officer of the company although, he says, he never had a clear day-to-day title or functions. 321. Mr Parker is now the General Manager of a company the publication of whose identity, by order of the Tribunal pursuant to s110A of the Act, is not to be published. Allegations in the course of employment PART 4. DISCRIMINATION ON THE GROUND OF RACE 401. Ms Egan complains of specific incidents. She claims that these incidents establish that, on the ground of her race, she was treated less favourably in the conditions of her employment than a person of a different race would have been treated in the same circumstances. The Tribunal deals with each of these incidents in turn. "National dress" complaint 402. It was Ms Egan's evidence that "probably two weeks into my employment...Mr Long called me into his office and said to me: "Up to this day your standard of dressing has been good, however, you look like you are wearing your National costume"." Her evidence was that on that day she was wearing light brown slacks, a dark brown blouse with brown shoes and a brown belt, a "sort of Arabian look". 403. Mr Long denies having made this statement. Mr Long gave evidence that on a couple of occasions he saw Ms Egan at work in what he would describe as "not the normal sort of attire that ladies working in an office wore". He described the attire as "very different" without being able to be specific except that on one occasion she wore "long socks with different coloured bands that went well up past the ankle". 404. Mr Long agrees that he "did talk to Ms Egan about her dress and her grooming very lightly", and that this led to him having a discussion at a meeting of all female staff convened specifically for the purpose. His evidence is that he was not happy with Ms Egan's standard of dress, but that he "had no wish to make it an embarrassing or pointed discussion at that stage". It was his evidence that other women in his office, specifically Tracey, had said something about the Complainant's standard of dress. In saying this he was referring to Tracey O'Dea, a co-employee of Ms Egan at the relevant time. 405. It was Ms O'Dea's evidence that she did not recall ever commenting to Mr Long about Ms Egan's clothes, but that she recalls on one occasion Ms Egan being in "very colourful clothes, sort of the colours of the rainbow, and the girls commented among themselves". 406. Ms Egan agrees that the meeting of all female staff was held, and says that she did not feel that the meeting was directed towards her personally. In fact it is her evidence that Mr Long made the comment about her clothing on "that one occasion, but never before or after did he address me personally to say "you are not looking right"". Finding: "National dress" complaint 407. The onus is on the Complainant to establish on the balance of probabilities that the events she complains of took place. The Tribunal is unable to satisfy itself on the evidence whether or not the comment regarding national dress, alleged by Ms Egan, was made. 408. In any event, were the Tribunal satisfied that the comment was made, it is of the view that Complainant would not thereby have been unlawfully discriminated against. Although the comment, if made, would be different treatment on the ground of Ms Egan's race, "mere difference is not enough" (per Street CJ in Haines v Leves (1987) 8 NSWLR 444 at 457E). For the treatment to be less favourable within the meaning of s7(1) of the Act and therefore discriminatory, it must be shown that the complainant suffered detriment (Haines v Leves per Street CJ at 457E and Kirby P at 471D-F). The evidence does not show that Ms Egan suffered any detriment resulting from the treatment complained of. 409. Ms Egan has therefore failed to establish this complaint. Accent complaint 410. Ms Egan alleges that on a number of occasions Mr Long complained to her about her accent. On the first occasion, in the second week of her employment, Mr Long "said exactly that Mr Parker had complained about my accent". Her evidence is that she did not ask Mr Long what he meant by that. 411. Ms Egan agrees that on the same occasion Mr Long reported Mr Parker's complaint that "on a few occasions (Ms Egan) had misspelt names of people calling him". She agreed that the misspelling may have happened. 412. Ms Egan gave evidence that "Mr Long mentioned my accent to me on several occasions...Mr Long always said "Mr Parker complained about your accent"". 413. She gave evidence that "when we were reviewing my position Mr Long said to me that my accent was inappropriate to the telephone work, my accent was inappropriate to answer the telephone and take messages for Mr Parker and that because of my accent I was not going to the switchboard shift which everybody did". This "review", says Ms Egan, took place after she had been employed for four weeks, on 25 May 1995. 414. It is Ms Egan's evidence that on 25 May, during the course of a conversation about her taking on the duties of desk top publishing, that "Mr Long told me that Mr Parker did not like my accent and that he thought it was inappropriate to telephone work and that is to answer the telephone and take messages or interact with clients over the telephone". 415. Ms Egan alleges in her affidavit sworn 31 October 1996 (Exhibit B) that in the conversation on 31 May that precipitated her dismissal Mr Long again said "Mr Parker doesn't like your accent". 416. In an affidavit sworn 8 May 1997 (Exhibit 3) Mr Long at paragraph 7 says that although he did relate to Ms Egan Mr Parker's and his own concerns about mistakes she had made, he "did not at that stage, or at any other time, make any reference to the Complainant's accent". Further, Mr Long denies having made any reference to Ms Egan's accent on 31 May at the time of her dismissal. 417. In his evidence Mr Long denied that Ms Egan was ever excluded from responsibility for answering the telephone. His description of the telephone system was that there was no-one on reception, that "the commander system that we have is the same on everybody's desk", and that "when you see the light flashing it is just a case of whoever gets to it first". It was his view that if Ms Egan did not take part in answering the telephone then it was her choice and not as the result of any direction. 418. Mr Long gave evidence that the mispronunciation of people's names by Ms Egan was not, in his view, anything to do with her accent. He denied a suggestion that the failure to make such a connection was "ludicrous". He did not offer any other explanation for Ms Egan's mispronunciation of people's names. He was unable to give an example of a name that was mispronounced, citing the passage of time since Ms Egan's short period of employment as the reason for this inability. 419. The Tribunal notes the undisputed professional capacity that Ms Egan has for both translating and interpreting between the Spanish and English languages, and her continuing employment in positions requiring superior skills in this regard. The Tribunal records that it was impressed with Ms Egan's fluency in English, noting an accent but not one that impeded at all her capacity to express herself, or to comprehend, during the course of her evidence. 420. Ms Egan, agrees that she may have misspelt names. She gave evidence also that she did as she was asked by Mr Long and requested callers to spell their name so that she would record it correctly. Her evidence is that "I did as Mr Long said to me and after that moment there was never any mention...it was never ever mentioned again." Mr Long agrees; it was his evidence that having reported to Ms Egan Mr Parker's complaints her misspelling of names, she improved. He gave evidence that he received no complaints about her mispronunciation or spelling from anybody other than Mr Parker and that, if it had been up to him, he would not have dismissed Ms Egan at that time. 421. It is agreed that on about 25 May Mr Long discussed with Ms Egan the possibility of her taking up desk top publishing duties within the company. It is his evidence that he did not regard any alleged communication problem that Ms Egan was said to have as posing any difficulty in doing the desk top publishing. 422. Mr Parker in his affidavit sworn on 8 May 1997 (Exhibit 2) says that he "did not complain to Brian Long or to any other person about the Complainant's accent". He repeated this denial in evidence. He was not cross examined further on this point, nor was it put to him that he had in fact complained about Ms Egan's accent. 423. Mr Parker gave extensive evidence about Ms Egan's competence in performing her duties. The only evidence he gave that may refer, by inference, to Ms Egan's accent was that he received telephone messages but "just couldn't work out who they were from", and "I couldn't make out the phone message as to who they were from to start with". 424. Mr Parker's evidence concerning Ms Egan's competence was not specific; he said that "he didn't feel that she was secretary material", and that he had "had numerous secretaries, she just didn't function as one". He did say that "a secretary takes a phone message down in a particular manner and can converse with the customer and sort of satisfy the customer without him getting cranky or something, the basic skills this lady didn't seem to have.". On the taking of messages he said that a "real lot" of wrong messages were given (by Ms Egan), that he didn't "know the extent of it", and that he had a problem with the messages "almost from the start". 425. Nothing in Mr Long's or Ms Egan's accounts of their conversations indicates that this degree of dissatisfaction on Mr Parker's part was ever conveyed to Ms Egan. There were two, perhaps three, conversations between Mr Long and Ms Egan that appear to have related to competence in as much as they referred to mispronunciation and misspelling. Ms Egan and Mr Long agree that after a discussion with Mr Long and some direction from him, Ms Egan's performance improved and nothing further was said. 426. The Tribunal heard extensive evidence from Mr Long and Mr Parker, and from witnesses called on their behalf, that people of a number of different races were employed at Rainbow Systems. The evidence went further and said that these people all spoke variously with different accents, even to the extent that interpreters were used on some occasions. Mr Parker gave evidence that Mona, who was a former assistant for an unspecified period, was Lebanese and "definitely had an accent". This evidence was not disputed on behalf of the Complainant. 427. The evidence was led as propensity evidence to establish the tendency of Mr Long and Mr Parker to not remark on employees' accents. The Tribunal does not find this evidence helpful to its inquiry. 428. The employment of these other employees with accents was not at all comparable with that of Ms Egan, most importantly with her professional relationship to Mr Parker and Mr Long, and with the relevance of her accent to their work. The absence of similarity between the circumstances of Ms Egan and that of the many other employees named is such that the evidence is of no real assistance to the Tribunal. Finding: Accent complaint 429. The Tribunal has regard to i. the fact that Mr Long and Mr Parker agree that Ms Egan's mispronunciation and misspelling of people's names was, to some degree, an issue for them in the course of Ms Egan's employment. ii. the fact of Ms Egan's accent, and iii. the evidence of Ms Egan. 430. The Tribunal finds: i. it is more likely than not that the comments of which Ms Egan complains, referring to her accent, were made to her by Mr Long, probably conveying what he knew or understood to be Mr Parker's opinion ii. that the comments Mr Long admits making to Ms Egan, referring to her mispronunciation and misspelling, were effectively comments referring to her accent iii. that speaking English with an accent is a characteristic that appertains generally to people of Colombian nationality, and the Tribunal notes that nationality is included in the definition of race for purposes of the Anti-Discrimination Act iv. that by the making of the comments referring to accent, mispronunciation and misspelling, Ms Egan was treated differently in the conditions of her employment than a person of a different race would have been treated in the same circumstances. 431. However, as was discussed at paragraph 408 above, "mere difference is not enough". For the treatment (ie the making of the comments) to be less favourable within the meaning of s7(1) of the Act and therefore discriminatory, it must be shown that the complainant suffered detriment: the evidence does not show that Ms Egan suffered any detriment resulting from the treatment complained of. 432. Ms Egan has therefore failed to establish this complaint. "Fruity" Comment 433. In paragraph 4(d) of her affidavit the Complainant deposed that "on one occasion Mr Parker said to me "when I interviewed you I didn't realise your accent was so fruity"". It is agreed between the parties that reference to Mr Parker is mistaken, and that Ms Egan intended to refer to Mr Long; no issue on this error as to the reliability of Ms Egan's memory, or generally as to the validity of this particular complaint, was taken at the hearing. 434. In paragraph 11 of his affidavit Mr Long denies making that statement. In his evidence he said "fruity is not a word I would use". He says, and the Tribunal agrees, that the word 'fruity' is presumably taken to mean 'strong'. It was his evidence that Ms Egan's accent was apparent at the time of the interview, and that he did think it was "a strong accent". In the Tribunal's view Ms Egan's accent is apparent, but not strong. Finding: "Fruity" Comment 435. The onus is on the Complainant to establish on the balance of probabilities that the events she complains of took place. The Tribunal is unable to satisfy itself on the evidence whether or not the comment alleged by Ms Egan was made. 436. In any event, were the Tribunal satisfied that the comment was made, it is of the view that Complainant was not thereby unlawfully discriminated against. As is discussed at paragraph 408 above, it is necessary for the complainant to show detriment: the evidence does not show that Ms Egan suffered any detriment resulting from the treatment complained of. 437. The Complainant has therefore failed to establish this complaint. Part 5. Discrimination on the Ground of Sex "Love, Baby, etc" 501. Ms Egan in her affidavit said that she was addressed by Mr Long as "Love" and by Mr Parker as "Darling" and "Baby", and that she "mentioned to Brian Long that I did not like the way I was being addressed". She says that "he continued to call me Love". 502. In her evidence she agreed that Mr Long also referred to other female staff members with the term "Love". She agreed that Mr Parker called "everybody Babe, Baby and Darling". 503. Ms Egan agrees that she did not complain to Mr Parker. She says that one or two weeks into her employment she complained to Mr Long and "told him that I could not believe the CEO of a company would address his staff as Baby and Darling or that I would also be addressed as Love". She says that she "did not say the words 'please stop addressing me as Love' because I did not want to be confrontational". Further, her evidence is that "I did not say 'please stop addressing me as Love' but I did say I did not like being addressed like that. I hoped that he would put two and two together, I did not want to sound confrontational". 504. Mr Long in his evidence was "very sure that at no stage did Mrs Egan ever complain to me about using the word Love". He agrees that it may have been raised in a general discussion because they had a lot of general discussions. 505. In his affidavit Mr Long agrees that he "may have addressed the complainant as 'Love'" but that Mrs Egan "did not at any time request me to refrain from addressing her as 'Love'". 506. Mr Parker in his affidavit admits "that I did address the complainant as 'Darling' and 'Baby'". 507. The Tribunal finds that Ms Egan was referred to frequently by Mr Long and Mr Parker in terms including 'Babe', 'Baby' 'Darling' and 'Love' ("the terms"). Finding: "Love, Baby, etc" 508. It is not clear whether Ms Egan has complained to the Tribunal that each time any of the terms was used there was a discriminatory act on the ground of her sex, or whether she has complained that the use of the terms taken together amounted to sexual harassment. Neither the pleadings nor the submissions assist in resolving this. 509. On a complaint by Ms Egan that each time any of the terms was used there was a discriminatory act on the ground of her sex, the Tribunal finds that by the use of these terms Ms Egan was, on each occasion, treated differently in the conditions of her employment than a person of the opposite sex would have been treated in the same circumstances. 510. Evidence that other women were treated similarly by Mr Long and Mr Parker is not helpful to the Tribunal's inquiry. The comparison to be made (s 24 (1) of the Act) is with men: would Mr Parker and Mr Long refer to men in terms that indicated a degree of intimacy similar to that indicated by the words 'Babe' 'Baby' 'Darling' and 'Love'. 511. However, as was discussed at paragraph 408 above, "mere difference is not enough". For the treatment (ie the use of the terms) to be less favourable within the meaning of s24(1) of the Act and therefore discriminatory, it must be shown that the complainant suffered detriment: the evidence does not show that Ms Egan suffered any detriment resulting from the use of the terms complained of. 512. Ms Egan has therefore failed to establish this complaint. 513. On a complaint by Ms Egan that the use of the terms taken together amounted to sexual harassment the Tribunal notes the onus on her to establish on the balance of probabilities that Mr Long and Mr Parker were aware that their conduct was unwelcome (O'Callaghan v. Loder (1984) EOC ¶92-023 at 75-498 and 75-506). 514. Ms Egan said in her evidence, denied by Mr Long, that she told him she did not like being addressed in those terms. The Tribunal is unable to satisfy itself whether Ms Egan did say this to Mr Long at all or in terms that conveyed to him that his use of the terms was unwelcome. It is Ms Egan's evidence that she did not attempt to convey an objection to Mr Parker; there is no evidence that he was otherwise aware of any objection she might have had to the use of the terms. 515. In any event, the Tribunal's finding in relation to the absence of detriment at paragraph 511 precludes the need for any further discussion of this point. 516. Ms Egan has therefore failed to establish this complaint. Complaint concerning conduct on the stairs 517. The complaint of sexual harassment relates to a single incident that took place on the last day of Ms Egan's employment, 31 May 1995. It was said for Ms Egan that "the incident on the stairs is the key incident in this case". This importance derives perhaps not so much from the seriousness of the incident in itself, but from the fact that it is alleged to have precipitated Ms Egan's dismissal as an act of victimisation. 518. The parties agree that, at least, Mr Parker's hand touched Ms Egan's bottom while they were together on the stairs; Ms Egan alleges that the contact was deliberate and Mr Parker says that it was accidental. 519. The Tribunal, in an attempt to determine which is the more likely explanation, must examine in as much detail as is possible the circumstances of the incident, the physical surrounds, the events preceding it, and those following it. The witnesses' recall and demeanour are not sufficient to enable the Tribunal to make a finding. 520. Attempting to reconstruct a single brief incident more than two years after the event, with sufficient precision to enable an inference to be made about the intention behind an act, demonstrates the considerable difficulty posed by reliance on memory alone. It is not surprising that two people's memories will differ, particularly on otherwise unremarkable facts such as the width of a stair. 521. During the hearing Mr Parker was cross-examined in an attempt to raise questions as to his credit; the evidence of Ms Sharon Tobin was led for Ms Egan on the same issue. The Tribunal ruled that a large part of Ms Tobin's statement and oral testimony should not be admitted into evidence as it was not the best evidence available, and no reason was offered for the absence of better evidence that would have avoided the need for the Tribunal to rely on hearsay. Counsel for Ms Egan did not address the Tribunal on the issue of Mr Parker's credit. Although his recollection was often vague and his memory poor, nothing in the evidence was, in the Tribunal's view, detrimental to Mr Parker's credit as a witness. 522. In her affidavit at paragraph 5, and again in her evidence repeatedly, Ms Egan gave an account of the incident, which the Tribunal summarises as follows: i. Ms Egan was upstairs and Mr Parker requested her to send documents by courier. ii. She was mistaken in her procedure and was corrected by Mr Parker. iii. At his direction she went downstairs, alone, and attended to the dispatch by courier. iv. On going back up the stairs, she met Mr Parker coming down and they stopped on the stairs. v. He said in a friendly tone "In the future you make sure that you check on the correct way of doing things". vi. As he was saying this he put his hand on her bottom. vii. She moved away from him and said "Don't touch my bum". viii. He said "You should be more concerned with checking with me than about me touching your bum". 523. Mr Parker in his statement at paragraph 7, and again in his evidence, gave his own account which the Tribunal summarises as follows, using comparable paragraph numbering: i. Ms Egan was upstairs and he requested her to send documents by courier. ii. She was mistaken in her procedure and he corrected her. iii. He told her to follow him downstairs where, in the reception area, he showed her the correct procedure. iv. Ms Egan than preceded him up the stairs. v. (a) He agreed in cross examination that on the stairs he said "that there won't be any more problems with this...that you'd understand what a courier is now, something along those lines". (b) He says in his statement that "I ushered her out of my way so that I could pass her on the stairs", and in evidence that "The girl on reception called out to her. She stopped. I just ushered her out of my way so I could get further round the steps". (c) He says in his evidence that he ushered or "castled" (he used both terms) Ms Egan aside placing his hands on her waist. vi. He walked past her and his hand accidentally touched her bottom. vii. Ms Egan said "Don't touch my bum". viii. He replied "I am very sorry but you should concentrate more on what you are supposed to do than my accidentally touching your bottom". 524. Ms Egan's and Mr Parker's account of what took place on the staircase is similar, but differ in important detail: Ms Egan said she was ascending and met Mr Parker descending; Mr Parker says that he was following her up the stairs. Ms Egan says that she stopped "because I saw he wanted to address me" and that she does not remember whether anyone called out or not; Mr Parker says in his evidence, but not in his statement, that someone called Ms Egan, causing her to stop. Mr Parker says that he physically moved Ms Egan aside on a narrow staircase; Ms Egan says that Mr Parker did nothing to move around her and that the staircase was a wide one. Ms Egan says that for their conversation about checking details they were standing on the same level facing each other, one foot on one step and the other on the higher step; Mr Parker says that he spoke to her about checking details with him while they were walking up the stairs. 525. Mr Parker has an understandable but nevertheless imperfect recollection of the incident. He does not in his statement refer to Ms Egan stopping on the stairs, but only that he "ushered her out of my way so that I could pass her on the stairs". In his evidence he said in chief that, when he "ushered her out of my way", Ms Egan "stepped back one step and I accidentally touched her". In cross examination Mr Parker volunteered that he "just castled her out of my way and at that same instant she stepped up on the step and I accidentally touched brushed her backside" (emphasis added). 526. Mr Parker said that "the stairs are very thin". He described the stairs in some detail, saying that the maximum width of each stair, from wall to edge, was "no more than 40 inches" (which the Tribunal understands to approximate 1 metre), with marble tiles on either end of each stair leaving a walkway about 30 inches (¾ metre) wide. Ms Egan on the other hand said that "the stair case would have been two metres wide probably". Asked whether it was a wider than usual staircase she said that "it was quite a wide staircase". It was "definitely much wider than a metre". 527. In her evidence Ms O'Dea, a fellow employee of Ms Egan, said that the stairway was "really wide" and indicated the full span of her arms which the Tribunal remarked to be well over a metre. Single act as sexual harassment 528. Before attempting to make findings in relation to the incident, it is appropriate to consider whether a single incident can in any event constitute sexual harassment for purposes of the Act. 529. Since the time of the incidents complained of, the Act has been amended to make specific provision for sexual harassment (s22A), and to define it in terms of "an unwelcome advance" i.e. the definition includes a single event. The position prior to section 22A in relation to sexual harassment is well understood, deriving as it does from the landmark case of O'Callaghan v. Loder (1984) EOC ¶92-023 and developed in Hill v Water Resources Commission (1985) EOC ¶92-127; M v R Pty Ltd (1988) EOC ¶92-229; and A v B (1991) EOC ¶92-367, among others. The status of a single incident as the basis for a sexual harassment complaint is not decided in those cases, but to pose the question in that way is misleading. 530. The question to be asked is not: "is a single incident is sufficient to constitute sexual harassment or are multiple acts necessary?", but "did the conduct, be it one incident or many, result in detriment to the complainant?". 531. Detriment is demonstrated in the employment context by the creation of "unwelcome features of employment": O'Callaghan v. Loder at 75-505. Compare Hill v Water Resources Commission at 76-288 where such a feature may be a hostile work environment, and A v B at 78-534 where it was said that: "for the complainant to succeed . . . there must be a working environment which was permeated by unwelcome sexual conduct and innuendo and which was hostile and offensive to her" (emphasis added). 532. While the detriment to the complainant in those cases resulted from courses and patterns of conduct which permeated the workplace, it can reasonably be imagined however that a hostile environment might result from a single act: "In the normal course of events it is the persistence in the sexual conduct which renders it unlawful . . . A single approach by an employer would be unlikely to fall within s25(2)(a). But one cannot discount the possibility of an employer's single act of sexual aggression so tainting the working environment as to come within this section . . . . It will depend entirely on the circumstances of the case." (O'Callaghan v. Loder at 75-505) In M v R Pty Ltd at 77-174 this analysis was the basis of a more restrictive test: "Although a single act of sexual aggression may sufficiently taint the working environment, s25 cannot be invoked except where the conduct . . . . is such as to 'create an unwelcome feature of the employment in a continuing rather than an isolated sense' (citing O'Callaghan v. Loder)" 533. Whether a single act has in fact "sufficiently tainted the working environment" is a matter to be decided in the particular circumstances. The circumstances in this case are as follows. 534. Ms Egan gave evidence that "Mr Parker quite often comes close to people when he is going to address them. He sometimes pinches people on the side or gives them a touch which seems to be the way he starts addressing them." She said however that "he had never touched my bottom before, no, he had touched me like touch my shoulder or sometimes he would touch me on the side". She said that she "felt uncomfortable by it, but I never made a comment about it". Any such incidents occurred before the incident on the stairs, and are not the subject of complaint before the Tribunal. 535. In her affidavit Ms Egan says at paragraph 6 that "immediately after the incident...I returned to my desk and finished typing a letter for Brian Long", and that she then reported to Mr Long that she had "had an argument with Mr Parker". 536. In evidence Ms Egan said that on the stairs she "reacted very abruptly and I moved away from him (Mr Parker)". And that "after that I went back to my work station and I was upset by the incident and I wanted to have some time to think about it". She then told Mr Long that she "had had an argument with Mr Parker and Mr Long asked me to describe it and I told him he touched me and I reacted strongly and I told him not to touch me." 537. In cross examination she agreed that her conversation with Mr Long "was along the lines of me saying "I have had a disagreement with Stan downstairs and he put his hand on my bottom"". 538. Mr Long in his statement makes no comment about Ms Egan's demeanour during the conversation, nor does he refer to her reacting in any way to Mr Parker's alleged conduct. He said that "the Complainant said that she was not prepared to resign". Ms Egan agrees that Mr Long mentioned resigning, and says that she did not agree with this proposal. 539. In his evidence Mr Long makes no reference to Ms Egan's demeanour after the alleged incident, or her reaction to it, other than the fact that she related it. Finding: conduct on the stairs 540. It is difficult for the Tribunal to be satisfied that the incident complained of, if it occurred as alleged and at its highest, could have itself constituted sexual harassment under the law as it was at the relevant time. The single act complained of did not create for Ms Egan a hostile work environment; a series of such incidents might have done, and a single more serious incident might have done, but the evidence does not show that this particular single incident did, or indeed could have in the hour or so during which Ms Egan remained in employment. 541. Ms Egan therefore has failed to established this complaint. 542. This is not to in any way condone the conduct, if it took place as Ms Egan alleged, or to suggest that such conduct if it occurs is unremarkable and not to be complained of; indeed subsequent amendments to the Act (section 22A) restate the law in very different terms, and in such a way as to suggest that such conduct as alleged by Ms Egan could now be unlawful. Allegations at the time of dismissal Part 6. Discrimination on the ground of sex 601. Points of Claim, a procedure used by the Tribunal in this case, were filed by Ms Egan. They alleged, in part, that Ms Egan was discriminated against on the grounds of race and sex by being dismissed. 602. On the first day of hearing Counsel for the Complainant confirmed for the Tribunal that "the allegations of discrimination based on race and sex apply in relation to her period of employment and during her period of employment as well as to her dismissal" (emphasis added). 603. In closing, Counsel for the Complainant summarised by saying that "The Complainant says that those matters (the evidence) related to her race, and that if she was dismissed because of her accent then the Respondent has breached section 8 of the Anti-Discrimination Act. But if the Complainant was dismissed because of harassment and her objection to being touched by Mr Parker and because of her subsequent complaint to Mr Long about that incident then the Respondent has breached section 25 and section 50". 604. The only evidence that may be of sex-based conduct in relation to dismissal is a comment about "poor grooming". This is alleged by Ms Egan to have been said by Mr Long as a reason for her dismissal. Mr Long denies having made reference to grooming in any conversation relating to her dismissal. 605. Ms Egan has not complained of comments or conduct in the course of her employment relating to grooming, except the comment relating to national dress which she has characterised as a race-based comment. No evidence was led to support a claim that comments or conduct in relation to grooming were discriminatory. The evidence that traversed the issue of grooming arose from the allegation concerning the comment regarding national dress. 606. There is nothing in the evidence, nor in submissions on behalf of Ms Egan, that suggests that her sex was a factor in the decision to dismiss her. Ms Egan alleges a term, poor grooming, was used in the statement that she was dismissed. Use of the term was denied, and the evidence was not directed by either party towards establishing that poor grooming was a sex-based issue in the course of Ms Egan's employment. Finding: dismissal on the ground of sex 607. Ms Egan has not led any evidence to support an allegation that anything said or done in relation to her dismissal was said or done on the ground of her sex. Accordingly the Tribunal is unable to be satisfied that Ms Egan was dismissed on the ground of her sex. 608. Ms Egan therefore has failed to established this complaint. Part 7. Discrimination on the ground of race 701. Evidence about the basis of Ms Egan's dismissal on this ground is conflicting and confused. Evidence: dismissal on the ground of race 702. Mrs Egan's evidence is quite straightforward. In her affidavit at paragraph 7 she alleges that she was told that she was being dismissed for her "low communication skills". In her evidence she repeated that she was told she "was being dismissed because of my poor communication skills". 703. Mr Long gives two distinct reasons for having dismissed Ms Egan. The first is what the Tribunal summarises as being concerned with competence. 704. In his affidavit at paragraph 19 Mr Long says that Ms Egan was "dismissed for her failure to properly and adequately perform her duties". In paragraph 4 he says that "towards the end of the Complainants trial period it was becoming obvious to me that she was not capable of handling the secretarial position, on the basis of her lack of communication skills and general low standard of office work". In paragraph 15 he says that he told Ms Egan that "in Mr Parker's opinion she was not performing her duties properly and I referred in particular to her inability to communicate and to take messages." 705. In his evidence Mr Long denied that he said to Ms Egan that she was being dismissed for "poor grooming and low communication skills". His evidence was that Ms Egan's dismissal "was based on what had happened for the past four weeks, in relation to her performance". He referred to "very minor things around the office like getting letters done on time which I know I had a couple of complaints about. The fact that when I had wanted letters they seemed to take forever to get done...I think towards the end with the delay in getting work done on the word processor". 706. Apart from this limited personal impression, the only examples Mr Long could give of recurring issues concerning Ms Egan's competence were the misspelling and miscommunication of names that Mr Parker had complained to Mr Long about. It was in fact Mr Parker, not Mr Long, who alleged that Mrs Egan was incompetent: his evidence to this effect is summarised at paragraph 424 above. 707. Mr Long did not at the time of Ms Egan's dismissal believe her to be incompetent: on his own evidence this problem was addressed when he spoke to Ms Egan about recording names correctly and had no further occasion to speak to her about her performance of her duties. He agreed that "apart from the communications issue from a secretarial perspective her performance of secretarial duties for him and his requirements was satisfactory". He received no complaints from anyone other than from Mr Parker and answered the question "if it was up to you would you have dismissed the Complainant?" by saying "Not at that particular time, no.", although it is unclear whether this response indicates only a question of timing. 708. Evidence from Mr Sebastian Ma was led for Mr Long and Mr Parker. It was intended to support a claim that Ms Egan was not competent in her duties, specifically in relation to word processing. 709. The Tribunal has no reason to disbelieve Mr Ma's account of his dealings with Ms Egan. Those dealings do not, however, persuade the Tribunal that Ms Egan was to any degree incompetent in her duties. His dealings with her were brief and in the very first days of her employment. His account shows that Ms Egan sought clarification of subjective aspects of her employer's configuration of the word processing system. In answer to the question "Do you recall her asking the same question again on a later occasion?", Mr Ma said "No, after I explained to her, no". 710. The Tribunal notes the exemption Ms Egan received from the Word Processing subject in her Diploma of Journalism studies, evidenced by the Statement of Academic Record (Exhibit D2). 711. Mr Long gives a second reason for Ms Egan's dismissal. 712. He said in evidence that he dismissed Ms Egan because of the unworkable nature of the relationship between her and Mr Parker. This is not, he says, a reference to the incident on the stairs, of which he says he was unaware, but to the fact that "Mr Parker and Ms Egan had not really hit it off for some time". He said "there was no strong complaint made about it, that it was just - I could just see as general manager of the business, and being responsible for the internal administration, that this wasn't going to work". He does not detail reasons for this view, referring only to Ms Egan's "comments" about Mr Parker's use of the terms darling, babe etc. 713. Mr Parker made passing reference in his evidence to this issue of rapport, saying "I just didn't feel I could work with Esperanza at the end. She just got her back up and I didn't feel I needed to work with someone like that." The issue of Ms Egan's alleged tendency to "get her back up" was explored in evidence but the evidence did not establish that there was any notable exchange between Ms Egan and Mr Parker apart from the incident on the stairs and possibly the despatch of the courier some minutes beforehand. 714. In analysing this evidence and coming to a view on the circumstances of Ms Egan's dismissal the Tribunal notes the following evidence. 715. First, it is agreed between the parties that after four weeks of Ms Egan's employment she was invited to perform desk top publishing duties. There is some dispute over whether the offer was made for a trial or permanent basis, and over the extent to which Ms Egan was to work with the outgoing employee responsible for desk top publishing, Ms O'Dea, who was soon to depart on maternity leave. 716. Second, Ms Egan's professional qualifications in translating and interpreting, and the nature of her work experience were uncontested. Resolution of the evidence 717. The Tribunal's analysis of the evidence follows. 718. Mr Long's own view of Ms Egan's competence was not unfavourable, certainly not to the degree that he believed her dismissal was warranted. His only assessment of her competence related to some minor things around the office which, when discussed with her, were rectified to his satisfaction. 719. Mr Long's offer to Ms Egan that she undertake the publishing responsibilities which were detailed in evidence, is viewed by the Tribunal as inconsistent with any serious or continuing degree of concern regarding Ms Egan's general competency around the office, particularly in relation to "very minor things" such as "getting letters done on time". 720. Mr Long may have had concerns about the rapport between Ms Egan and Mr Parker, but the evidence falls well short of establishing that those concerns were sufficient to warrant Mr Long deciding to dismiss Ms Egan. Sufficient or not, the Tribunal finds that those concerns are not shown by the evidence to have actually motivated Mr Long to dismiss Ms Egan. 721. Mr Parker's view of Ms Egan's competence was unfavourable. Throughout her short period of employment the principal, if not the only substantial, complaint regarding Ms Egan's competence relates to mispronunciation and misspelling ("poor communication skills"). Mr Parker made general reference to what he believed to be Ms Egan's "failure to function" as a secretary. 722. Ms Egan claims that "poor communication skills" were given as a reason for her dismissal. Even if the given reason was, as claimed by Mr Long, "poor performance" the Tribunal is of the view that the alleged "poor performance" refers almost exclusively to allegations of poor communication skills. 723. The Tribunal is of the view, expressed above at paragraph 430 that references to Ms Egan's communication skills were effectively references to her accent, and that accent is a characteristic of race for purposes of the Anti-Discrimination Act. Finding: dismissal on the ground of race 724. The evidence does not satisfy the Tribunal that Ms Egan in fact had poor communication skills. The evidence shows that it was not Mr Long's view. Mr Parker's evidence was broad in its assertion but lacked even the slightest detail of the problematic nature of Ms Egan's taking of telephone messages. Ms Egan was at the time well qualified as a translator and interpreter, and trained and experienced in office work. 725. It is in the Tribunal's view improbable in light of all the evidence that an operative reason for Ms Egan's dismissal was poor communication skills, which is the only race-based ground on which she relies for a claim that the dismissal was discriminatory. 726. Ms Egan therefore has failed to established this complaint. Part 8. Victimisation 801. A finding that the stated reason for dismissal - poor performance of duties - was not an operative reason for the dismissal, leaves open the question of what was. The Tribunal has already found, at paragraph 720 above, that the evidence does not support an alternative claim by Mr Long that he dismissed Ms Egan because he could see that Ms Egan and Mr Parker were not going to get along. 802. Ms Egan's claim is that the dismissal was an act of victimisation. In cross-examination, for example, she confirmed her belief "that the reason for (her) dismissal was because (she) complained about Mr Parker's behaviour". 803. Ms Egan's allegation of victimisation is in addition to an allegation of having been dismissed on the grounds of her race and her sex. The findings of the Tribunal necessarily result in victimisation being considered as the only one of these grounds that could be the reason for Ms Egan's dismissal. 804. The relevant parts of s50 of the Act read: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: . . . . . . . (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act; or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. 805. The alleged ground for the victimisation is, in the terms of s 50 of the Act, that Mr Parker suspected that Ms Egan intended to do, at the least, some thing under the AntiDiscrimination Act in relation to him as a result of the incident on the stairs, and so directed Mr Long to dismiss her. 806. As the incident on the stairs that would have given rise to the suspicion took place within an hour or so of the dismissal, it is necessary to look closely at the course of events immediately following the incident to determine whether it was operative in the decision to dismiss Ms Egan. 807. The Tribunal summarises Ms Egan's account as follows: i. she returned to her desk and took about 15 minutes to finish a letter for Mr Long. ii. At approximately 4.00 pm she went into Mr Long's office and reported to him the incident on the stairs ("the first conversation"). iii. Mr Long referred to having "just" spoken to Mr Parker about Mr Parker's complaint that her communication skills were poor. iv. Mr Long suggested that Ms Egan resign v. Ms Egan said she wished to speak to Mr Parker. Mr Long said he thought this would be pointless, and suggested that Ms Egan take a walk to relax. vi. Ms Egan returned to her desk at about 4.30 pm, and at about 4.45 pm went to Mr Parker's office and asked to speak to him. He asked her to wait for 10 minutes. vii. Mr Parker then went to Mr Long's office for a few minutes and left. viii. Mr Long called Ms Egan into his office ("the second conversation") and told her she was being dismissed. 808. Mr Long, where he can give evidence of his involvement in the events, agrees with Ms Egan except for the following, comparing the paragraph numbers above: vii. Mr Long does not recall Mr Parker coming into his office before the second conversation. He repeated in evidence that it was not his "understanding", nor his "recollection" that Mr Parker came into his office; he says that he went and saw Mr Parker in Mr Parker's office, and then returned to his own. viii. Mr Long says that in the second conversation Ms Egan made a reference to her husband, and Ms Egan denies this; the reference is not relevant to the Tribunal's inquiry. 809. There is no argument that Ms Egan complained to Mr Long of Mr Parker having touched her on the bottom. 810. Mr Long estimates that it was some 15-20 minutes before Ms Egan came into his office that he had the conversation with Mr Parker. This is consistent with Mr Parker and Mr Long's conversation having occurred after the incident on the stairs. 811. Mr Long described Mr Parker as being red in the face which, although it happened from time to time, struck Mr Long as surprising as Mr Parker had been in "quite a good frame of mind" earlier in the day. It was put to Mr Long that "it came as a surprise to you when Mr Parker came in", and he replied "it all seemed to come to a head rather quickly". 812. Mr Long agreed in his evidence that at the time of his first conversation with Ms Egan he had already been told by Mr Parker that Mr Parker wanted Ms Egan dismissed. 813. Mr Long also agrees with Ms Egan's evidence that when, in the first conversation, she told him of the incident on the stairs, Mr Long replied with words the effect: "Now I understand why Stan was so upset when he spoke to me about you a short time ago". 814. In his statement Mr Parker makes no reference to having had any conversation with Mr Long on 31 May at all. In his evidence, in answer to a question "did you speak to Mr Long after that incident (on the stairs)?", he replied "I think I did". He agreed with the proposition put to him that he spoke to Mr Long "that afternoon" about dismissing Ms Egan. 815. In his evidence Mr Parker agreed with the account Mr Long gave of the conversation between himself and Mr Long, but said that he does not have his own recollection of the conversation. Even so, Mr Parker denies that the incident on the stairs precipitated his direction to Mr Long to dismiss Ms Egan. He says variously in his evidence that he dismissed Ms Egan for poor work performance and because she "got her back up". The Tribunal has dealt with both these alleged reasons for dismissal at paragraphs 720-726 above. 816. Mr Parker's recollection of events after the incident on the stairs is generally vague, although he has a clear recollection of the incident itself. The strongest independent recollection he has is of a "crisis" he was attending to on the telephone. He remembers that his telephone conversation "took me to the end of the day". 817. He does not recall going into Mr Long's office after Ms Egan asked to see him although he remembers leaving his office at the end of his telephone conversation to speak to Ms Egan and finding that she had gone. He does recall, he says, that he did not tell Mr Long of the incident on the stairs. 818. Mr Parker agrees with Ms Egan that in their conversation on the stairs seconds before her bottom was touched, he said to her words to the effect that there would be no problems in future about the courier system. Ms Egan recalls the conversation being in a friendly tone and Mr Parker did not give evidence otherwise. Ms Egan and Mr Parker agree that the conversation came to an abrupt end after the touching of her bottom, and Mr Parker says that he was embarrassed. 819. The Tribunal finds that: i. After the incident on the stairs, Ms Egan returned to her desk and finished typing a letter for Mr Long. At the same time Mr Parker went to Mr Long's office, was visibly upset, and directed Mr Long to dismiss Ms Egan on the basis of her poor communication skills. ii. Poor communications skills was not Mr Parker's real reason for Ms Egan's dismissal (see paragraph 725 above). iii. About 15 minutes after returning to her desk Ms Egan, at approximately 4.00 pm, delivered the letter to Mr Long's office and complained of the incident on the stairs. iv. In that conversation with Ms Egan, Mr Long referred to his conversation with Mr Parker shortly beforehand. v. In that same conversation Mr Long became aware of the reason for Mr Parker having been visibly upset in their earlier conversation, the incident on the stairs. vi. Mr Long suggested that Ms Egan resign. He did not at that stage dismiss her. vii. Ms Egan asked to see Mr Parker and Mr Long counselled her against this. viii. Ms Egan returned to her desk. She then went to Mr Parker's office but he was on the telephone. ix. Mr Long and Mr Parker had a further conversation, either in Mr Long's office or Mr Parker's office, in which Mr Long confirmed to Mr Parker his intention to carry out that day Mr Parker's direction to dismiss Ms Egan. x. Ms Egan went to Mr Long's office and was dismissed. 820. These findings lead the Tribunal to the view that the reason for Mr Parker's direction to Mr Long to dismiss Ms Egan was the incident on the stairs, and specifically his suspicion that Ms Egan would make an allegation of sexual harassment. Mr Long, after his conversations with Mr Parker and Ms Egan, knew that that was the reason for Ms Egan's dismissal. 821. The decision to dismiss Ms Egan was Mr Parker's, for the reason described. He is the discriminator within the meaning of s50. Mr Long, with knowledge of the reason behind the direction to dismiss, aided Mr Parker within the meaning of s52 by carrying out the dismissal. 822. Ms Egan therefore has established this complaint. Part 9. Liability of the Respondents Grounds of sex and race 901. As the Tribunal has found that Ms Egan was not subject, on the ground of either race or sex, to discriminatory conduct within the meaning of the Act, the issue of the employers' liability and through it of the employees' liability, under ss 8 and 25, does not arise. 902. The Tribunal notes, however, an argument made in submissions that is clearly misconceived, and should be addressed. It was argued for Mr Long and Mr Parker that because they were not, personally, the employers of Ms Egan, and because section 8 (race) and section 25 (sex) make the discriminatory conduct of only an 'employer' unlawful, no finding of unlawful discrimination can be made against Mr Long and Mr Parker pursuant to those sections. 903. The Tribunal notes that if it was necessary to decide this issue, Sections 52 and 53 provide the answer. Those sections are as follows: 52. It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act. 53. (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) . . . . . . . 904. Again the observations of Graham DCJ in M v R Pty Ltd at 77-175 are helpful in this regard: "Accessory liability . . . . . .where an employer is liable, personally (according to common law as described by Graham DCJ) or vicariously by virtue of s 53 for an act of unlawful discrimination, the provisions of s 52 are applicable to any person who "causes, instructs, induces, aids or permits" the employer to do an act that is unlawful by reason of this Act". . . . . once principal liability is established as against the employer, the Complainant is able to proceed against the (employee) jointly or severally." 905. Were it necessary for the Tribunal to do so in this case, it would decide whether or not Rainbow Systems, as Ms Egan's employer, was liable to her by virtue of s53 or the common law, and then whether or not the conduct of Mr Long and Mr Parker as employees was such as to have made them liable as accessories by virtue of s52 of the Act. Thus, not being the 'employer' does not necessarily relieve an employee from liability for discrimination on the ground of sex or race. 906. The Tribunal has found that Ms Egan was victimised within the meaning of s50 of the Act. As was conceded on behalf of Mr Long and Mr Parker, the issue of employer/employee liability does not arise under s50 which is the 'victimisation' provision: reference is made only to a person identified as "the discriminator". 907. As recorded in paragraph 821 above, the decision to dismiss Ms Egan was Mr Parker's. He is the discriminator within the meaning of s50. Mr Long aided Mr Parker within the meaning of s52. Part 10. Damages 1001. In her Points of Claim Ms Egan seeks an amount of compensation for loss of income, and seeks damages, to a total of $40,000. The Tribunal has the power to order compensation for loss and damage (s 113 (b) (i)); none of the other remedial powers in s 113 is appropriate to consider in the circumstances of this case. Loss 1002. The Tribunal finds that Ms Egan's loss of income occasioned by her unemployment and subsequent part-time employment, was loss caused by her unlawful dismissal. 1003. No documents evidencing Ms Egan's loss of income were filed or tendered. 1004. Oral evidence from Ms Egan on loss was not contested. The state of the evidence is not particularly helpful, despite the Tribunal's own inquiries of Ms Egan. Piecing together her evidence on this point, the Tribunal finds that Ms Egan was unemployed for a period of six weeks, during which she made reasonable efforts to find employment. 1005. She obtained employment for 20 hours a week at the rate of $16.50 for two months, and then at the rate of $18.00 for a further five months. The Tribunal calculates this as a gross figure of $330 a week for the first eight weeks, and $360 a week for the next 20 weeks. 1006. Her evidence is that in her next employment she was paid at a rate "equivalent" to her employment with Rainbow Systems. Ms Egan was working only four days a week in this next employment, so the question might arise whether "equivalent" means the same weekly amount or the same daily amount; in the latter case her take home pay would be less than it had been at Rainbow Systems. On the available evidence the Tribunal is unable to determine this question and, in the absence of evidence from Ms Egan, takes it as meaning the same weekly amount. 1007. Annexure 'A' of the affidavit of Mr Long (Exhibit 3) is a copy of Ms Egan's letter of appointment from Rainbow Systems. It advises that her "salary is $30,000 per year" which the Tribunal takes to be a gross figure. 1008. On this figure, the Tribunal calculates Ms Egan's gross salary with Rainbow Systems to have been $576.92 per week. Her loss therefore for the six weeks after her dismissal is calculated as $3461.52. 1009. Her loss for the following eight weeks was at the weekly rate of ($576.92 - $330) = $246.92, amounting to $1975.36. 1010. Her loss for a further 20 weeks was at the weekly rate of ($576.92 - $360) = $216.92, amounting to $4338.40. 1011. Her total loss consequent on her unlawful dismissal is calculated as the gross figure of $9,775.28. Damages 1012. No documents evidencing Ms Egan's claim for pain and suffering were filed or tendered. 1013. Oral evidence from Ms Egan on pain and suffering was not contested. Her evidence was that "having been dismissed the way I was dismissed my confidence was just shattered". 1014. She gave evidence that her confidence was at that stage also adversely affected by earlier comments on her accent and grooming. There was no evidence that comments on her accent and grooming had any adverse impact on Ms Egan during her employment, and that Tribunal has not found Mr Long or Mr Parker liable to Ms Egan for those comments. 1015. Her dismissal would undoubtedly have been an occasion for Ms Egan to reflect on the whole of her brief employment experience with Rainbow Systems. Recalling comments on her accent and grooming might well have added to her lack of confidence on being dismissed, as might other incidents of a personal nature such as suggestions that she was simply not competent. 1016. Ms Egan's evidence is that she immediately began writing letters seeking further employment, and that she attended a couple of interviews in the first three weeks after her dismissal. She then went to an employment agency and attended a couple more interviews before securing employment. 1017. She sought no medical help or counselling assistance, and there is nothing in her evidence to indicate that such was warranted. She says that "even though this (the dismissal) had an impact on me I was not going to let it destroy me". 1018. The Tribunal finds that Ms Egan did suffer some degree of upset, and a lessening to some degree and for a short period of her confidence, as a result of the dismissal. It is the Tribunal's view that an appropriate amount of damages is $500. Apportionment 1019. The Tribunal has regard to its finding that Mr Parker is liable to Ms Egan as the discriminator, and that Mr Long is liable to her as one who aided the discriminator. In all the circumstances the Tribunal apportions responsibility for the loss and damage suffered by Ms Egan 80% as to Mr Parker, and 20% as to Mr Long. Part 11. Costs 1101. Having regard to s 114 of the Act and the findings made, the Tribunal is of the opinion that it is appropriate for each party to pay their own costs. Part 12. Findings and Orders 1201. The Tribunal finds that i. Ms Egan was subjected to detriment, in that she was dismissed, by reason that it was suspected that she intended to make a complaint of sexual harassment ii. so subjecting Ms Egan to detriment was unlawful conduct by virtue of section 50 of the Anti Discrimination Act iii. Ms Egan suffered loss and damage as a result of the unlawful conduct in the sums of $9,775.28 and $500 respectively, a total of $10,275.28. iv. the respondent Mr Parker is by virtue of section 50 of the Anti Discrimination Act liable to Ms Egan for his unlawful conduct v. the respondent Mr Long is by virtue of section 52 of the Anti Discrimination Act liable to Ms Egan for his unlawful conduct vi. responsibility for the loss and damage suffered by Ms Egan is apportioned 80% as to Mr Parker, and 20% as to Mr Long vii. Ms Egan has otherwise failed to establish her complaints of unlawful discrimination. 1202. The Tribunal orders that i. the respondent Mr Long by reason of his unlawful conduct, pay Ms Egan the total sum of $2,055.05 being $1955.05 by way of compensation for loss and $100 by way of compensation for damages; ii. and the respondent Mr Parker, by reason of their unlawful conduct, pay the complainant the total sum of $8,220.23 being $7820.23 by way of compensation for loss and $400 by way of compensation for damages; iii. the complaints alleging discrimination on the ground of race and on the ground of sex in the conditions of her employment be dismissed; iv. the complaints alleging discrimination on the ground of race and on the ground of sex by dismissing her be dismissed; v. all complainants against the first-named respondent Ramsey Meats Pty Limited (in liquidation) be dismissed; vi. each party pay their own costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.