Equal Opportunity Tribunal of New South Wales CITATION: Williams -V- Regional Publishers Pty. Limited [1997] NSWEOT COMPLAINANT: Ms Margaret Williams RESPONDENT: Regional Publishers Pty. Limited NUMBER: 121 of 1996 & 2 & 25 of 1997 Mr Reginald Bartley AM ( Judicial Member ) TRIBUNAL: Ms K Edwards Ms L Farmer OAM GROUNDS OF COMPLAINT: Discrimination on the grounds of marital status, sex and victimisation in the area of employment DATES OF HEARING: 03/19/1997 DATE OF JUDGMENT: 03/19/1997 Complainant: Ms C Ronalds (Barrister) Ms J Lye (Solicitor) LEGAL REPRESENTATIVES: Respondent: Mr I Neil (Barrister) Ms K Thackerey (Solicitor) JUDGMENT IN FAVOUR OF: TRIBUNAL: The Tribunal has before it three complaints:- 1. A complaint on 22 August, 1995, by Margaret Williams that she has been discriminated against on the grounds of marital status and sex in the area of employment (ss 24, 25, 39, and 40). 2. A complaint on the 18 November, 1996 by Margaret Williams that she has been discriminated against on the grounds of marital status in the circumstances of employment by not being offered promotion because of her marital status (ss 24, 25, 39, 40 and 50). 3. A complaint on the 4 March, 1997, of harassment in the workplace as a result of her previous complaint against the respondent to the Anti-discrimination Board(ss 24, 25, 39, 40 and 50). There is little factual dispute. The parties have agreed to the following facts: 1. The complainant in these proceedings is an employee of the Respondent. 2. The Respondent is the owner of a newspaper, the Newcastle Star (THE STAR) which is circulated throughout Newcastle and surrounding suburbs on a weekly basis to readers. 3. The Respondent is in competition with another free weekly newspaper owned by the Post Group of Newspapers (THE POST), which is circulated throughout the Hunter Region. 4. Both THE STAR and THE POST maintain a list of clients who advertise with their papers. 5. These lists set out the names and addresses of both individuals and companies who advertise with the newspapers. 6. Copies of these lists were produced on subpoena in the course of these proceedings. 7. Most corporate clients listed on THE STAR'S client lists are also on the client list for THE POST Group of Newspapers. 8. Most corporate clients who from time to time have placed advertisements in THE STAR may have also from time to time placed advertisements in THE POST. 9. If corporate clients advertise simultaneously with both THE STAR and THE POST, then they will often place the same or a similar advertisement in both newspapers. The complainant has been married to Mr Glen Williams for a period of 6 years. Each worked for THE STAR which is owned and operated by Regional Publishers Pty Ltd. The complainant held the position of Credit Manager, while her husband Mr Glen Williams was a sales executive. Mr Williams' major responsibility while at THE STAR was to sell advertising space to new and continuing clients. THE STAR was in intense competition with THE POST. In mid August (there is some dispute about the exact date), Mr Williams handed his resignation to the General Manager of THE STAR, Mr Kerr. When asked, Mr Williams told Mr Kerr that he was going to work for THE POST. At that stage Mr Kerr said to Mr Williams, "Do you realise this will effect Margaret's position?" On 1 August, 1995, Mr Kerr and Mr Whish-Wilson met with Mrs Williams. Mrs Huthnance also attended the meeting at Mrs Williams request. Mr Whish-Wilson said to her, "You can't do your present job because of who you are living with." Mrs Williams said, "It has nothing to do with me. My job has nothing to do with whom I am married to." It appears Mr Whish-Wilson said, "I'll have to dismiss you from your present position and move you to another position in the Company. Can you think of anything you'd like to do? This shouldn't affect your promotions." There were further discussions between the parties and Mrs Williams subsequently took up duties at the Maitland office of the Company. In a letter dated 16 August, 1995, Mr Whish-Wilson (the then Deputy General Manager, Regional Publishers Pty Ltd) said, This letter is to confirm what I said in our discussion this afternoon. In your current position at The Newcastle Star and Times you are dealing with the companies most confidential commercial information relating to our client arrangements and the advertising rates they pay. As you are aware, our biggest competitor is The Newcastle Herald/Post combination which is engaged in a cut-price war to win over our clients. Old and new clients of The Newcastle Star and Times are subject of special "offers" to get their business. In turn we will make approaches, after developing campaigns and pricing structures, to Newcastle Herald/Post advertisers. Glen's decision to join the Post therefore represents a difficult problem for us. Because you are living with a person who will be actively pursuing business from The Newcastle Star and Times advertisers you will be in a compromising situation. We would not suggest that there would be any deliberate actions on your part by which commercially sensitive information would be disclosed by you. However, there is always the risk of such a disclosure by an inadvertent comment or slip of the tongue in general "end of day" conversation. Coincidences may cause other embarrassments for you and for the company. As upsetting as it is to all of us, we believe we would be failing in our duty to shareholders and staff if we allowed the situation to continue. We believe a transfer of position within the company, with no loss of entitlements or salary, would be the best solution. Accordingly I confirm that we wish you to consider what new arrangement would best suit you, and discuss the whole matter with us tomorrow. Further discussions were held and on 30 August, 1995, the following letter was received by the complainant from Mr Whish-Wilson. This letter confirms the arrangements of your transfer to Maitland agreed in our discussions today. Your position will be Creditor's Supervisor at The Maitland Mercury . You will work a 26 hour week, and your hourly pay rate will be $13.46. Your current entitlements are unaffected. Your working hours will be Monday and Wednesday 9am - 4:30pm and Thursday & Friday 9am - 3:30pm. You will have Tuesday as your day off. These arrangements may be reviewed in consultation with you in January. In the position you will report to the Chief Accountant or his designate. As agreed, the position will be reviewed through discussion after six months. The basis of the complainant's transfer to Maitland was on the following conditions: a) as travel to Maitland would use up additional time, she should be compensated by working fewer hours; b) her hourly rate of pay should be increased so that she did not suffer a penalty because of those reduced hours; c) her hours of work should be arranged to fit in with her child-care arrangements; and d) the situation should be reviewed after six months. The complainant replied as follows: I am writing this letter to advise that although I accept the position of Creditors Supervisor, I am still not happy with the situation that arose because my husband Glen Williams joined an opposition Newspaper. I would like it recorded that: a) I feel I was unfairly treated; b) not offered a suitable position; c) feel I was unnecessarily pressured into a move to Maitland. Finally I feel I should still be Credit Manager - Newcastle Star. Both parties rely on the decisions in Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 92-108 and Waterhouse v Bell (1991) 92-376. The respondent particularly relies on the decision in Reddrop that: the decision of the employer was not reached on the general ground that the complainant, as a married woman, would be prone to disclose confidences to her husband. The decision was on the ground of the possibility she might disclose confidential information, whether by inadvertence or otherwise. This individual characteristic was not a characteristic generally imputed to married women. CCH5-780 (p6181) Commentary. In fact, the respondent's letter of 16 August, 1995 (set out earlier) refers to the fact "we would not suggest that there would be any deliberate actions on your part by which commercially sensitive information would be disclosed by you. However there is always the risk of such a disclosure by an inadvertent comment or slip of the tongue in general 'end of day' conversation." The Tribunal carefully examined the evidence on the reason set out in this letter, evidence consistently maintained by the respondent as the reason for the transfer of the complainant. The evidence regarding the information defined as commercially sensitive by the respondent was: ° that both newspapers check with each other as to clients' credit ratings; ° that there is no system of security concerning who is advertising in THE STAR and the rates they pay (i.e. no locked files kept, a facsimile machine in an unsecured area is used to receive and transmit information on offers); ° that "it is hoped" that staff will not talk to their rival THE POST, about commercially sensitive information; ° that once a client decides to advertise with THE STAR, this fact is known when the paper comes out (that is, when the advertisement appears) and in most cases it would be within seven days of the contract to advertise being made that the advertisements appear; ° that customers have little hesitation in comparing quotes from both THE STAR and THE POST; and ° that customers bargain between the newspapers using this information and that even if a contract is made, they can cancel and take up a rival offer (if they want to). The evidence from the respondents was that the booking slips held most of the sensitive information. The evidence regarding Ms Williams access to information regarding the same "commercially sensitive information" (as a result of her position as Credit Manager at THE STAR) was that she did have access via booking slips in a limited way, that is, in regard to new clients. It was also stated that the other position offered as a result of her husband's transfer, gave her access to all booking slips. Further evidence stated that there was a free flow of staff to and from THE STAR and THE POST and that others in "close personal relationships" with people employed by the competition (THE POST) with access to the same "commercially sensitive information" were not removed from their positions. The view of the Tribunal is that information which has been labelled by the respondent as "commercially sensitive information" does not compare to the "confidential information" in Reddrop's case. The information that the respondent has labelled "commercially sensitive information" has not been treated as confidential. In our view it was not commercially sensitive information and it was not a proper basis for the transfer of the complainant. There was no other reason put forward by the respondent as to why the complainant was transferred out of her position when her husband left to join the rival firm (although there was a suggestion that he would only last six months). In the alternative Mr Neil has submitted:- 1. The Tribunal need not inquire if the information was "commercially sensitive" as the answer to the question is not relevant to the determination of the complaint. 2. All the Tribunal has to decide is whether the respondent believed that some of the information was sensitive and by reason of that belief acted as they did. By this submission Mr Neil is submitting that to find the complaint proved there is an onus of proof on the complainant to prove intent (as in a criminal case). At common law, because intent is an ingredient of a crime it must be proved by the prosecution. A mistaken belief in facts which are inconsistent with the required intent does not have to be based on reasonable grounds. Either the accused has a guilty mind, or does not, and if an honest belief, whether reasonable or not, points to the absence of a required intent, then the prosecution fails to prove his case. See R v Morgan [1976] AC182 and generally He Kaw Teh v Queen (1985) 59 ALJR 621 esp. 649 Dawson J. Mr Neil relies on Boehringer Ingelheim (1984) 2 NSWLR 13 for his submission esp. judgement Mahoney JA (21 FG) (P22AZ). In reply Ms Ronalds relies on Paragraph 22D. She further submits that the fourth paragraph Page 22 of Justice Mahoney's judgement indicates an objective test applies when the Tribunal is considering matters under Sections 39 and 40. As might be expected, there is a scarcity of precedent in a matter of this kind. In the CCH publication Australia and New Zealand Equal Opportunity Law and Practice, Vol. 1, (Looseleaf) a commentary on the onus of proof in matters arising under the Anti-Discrimination Act (NSW) is set out. CCH 85-650 page 67431 It appears to the Tribunal that this commentary encapsulates the generally accepted law and procedure in the matter raised by Mr Neil. This view is supported by the following extract from O'Callaghan v Loder (1984) EOC 92-024. 1. To what standard must the complainant prove her case? The central matter for determination by this Tribunal is whether the acts of the respondents amounted to unlawful discrimination under the Anti-Discrimination Act. Although the concept of "unlawfulness" might raise the spectre of the criminal law, the sanctions which can then be invoked indicate quite clearly that this inquiry is more in the nature of a civil claim than a criminal prosecution. For sec. 113(b) of the Act empowers the Tribunal, upon finding that a complaint is substantiated, to award damages, to issue injunctions of to declare void any contracts made in contravention of the Act. No other sanction or consequence can attach to a finding adverse to the respondent. It accordingly must follow that the civil standard of proof will apply to proceedings before the Tribunal. Indeed, neither party has argued otherwise. The real question relating to the standard of proof arises from submissions made by Mr. Toomey, based primarily on the proposition that at least one of the complainant's allegations would, if substantiated, amount to a criminal assault, and also on the serious consequences which would flow to a respondent from an adverse finding in an inquiry of this nature. Mr. Toomey has urged that the Tribunal should follow the principle enunciated by Jordan C.J. in Re a Solicitor; ex parte The Prothonotary 56 W.N. (N.S.W.) 53 at 54: "In all cases coming before a civil tribunal, it is necessary, in order that it may be judicially determined that a fact exists, that the tribunal should be reasonably satisfied by evidence that it does exist. The tribunal is ordinarily entitled to be satisfied if it finds that the preponderance of evidence points to the existence of that fact. But the nature of the fact to be proved affects, as a matter of common sense, the process by which reasonable satisfaction is attained. Hence, where the matter to be proved is a grave fraud or a crime, the tribunal ought not to be satisfied that is has been established unless the preponderance of evidence is so substantial as to establish it clearly." This, and other similar judicial pronouncements on the subject, rely on the authority of Briginshaw v Briginshaw (1938) 60 C.L.R. 336, where Dixon J , (as he then was) said, at p. 361: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or its existence before it can be found. It cannot be found as a result of a mere mechanical comparison or probabilities independently of any belief in its reality." This was the standard urged by Hutley J.A. in Director-General of Education v. Breen & Ors. basis that serious consequences will always follow an adverse finding of this Tribunal. However both Ms. Katzmann for the complainant, and Mr. Young for the President of the Board, have urged that the concept of belief is inappropriate in civil proceedings, and that the Tribunal should be concerned only with proof on the balance of probabilities. They referred to the judgment of Murphy J. in T.N.T. Management Pty. Ltd v. Brooks (1979) 53 A.L.J.R. 267 at p. 271 where he said, in relation to Dixon J.'s statement quoted above: "In Reifek & Anor. v. Mc Elroy & Anor. (1965) 112 C.L.R. 517, the Court regarded Dixon J.'s statement as reconcilable with the balance of probabilities standard... In my opinion, they are not reconcilable. The requirement of belief is inconsistent with, and has no place in a system which applies the balance of probabilities as the standard of proof. Even where commission of a criminal offence is in issue in a civil proceeding, there should be no different standard. It is one thing for a civil tribunal to find that on the balance of probabilities a criminal offence was committed: it is quite another for it to say that it believes an offence was committed according to some standard comparable to the gravity of the allegation. The latter represents an abandonment of the balance of probabilities standard and its replacement by a test which differs from case to case and contains a subjective element." We are inclined to agree that "belief" is a difficult concept to apply when referring to the standard of proof. For belief can describe a state of mind anything between, on the one hand, a wavering preference for one of a number of tentative hypotheses and, on the other hand, a certain knowledge based on first hand observation that a particular state of affairs exists. As a matter of both common sense and common experience, some matters will require more proof than others before a Tribunal can be satisfied that they are established on the balance of probabilities. For instance, a Tribunal will require more proof of the happening of an inherently improbable event than it will of an inherently likely one. The standard of proof is the same, but the evidence required to meet that standard will vary accordingly to the nature of the allegation. When considered this way, there is no real conflict, in our view, between the statements of Dixon J. on the one hand and Murphy J. on the other. Just as the inherent improbability of the matter will affect the amount of proof necessary to establish it to ordinary civil standard, so will the gravity of the allegation. As Dixon J. said the Briginshaw's case, at p. 368 (when referring to an allegation of adultery in a matrimonial cause): "The importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a carefully scrutiny and appear precise and not loose and inexact." We accordingly propose to apply the ordinary civil standard of proof in this inquiry, but to take account of the gravity of the allegations and the serious consequences to a respondent following any adverse finding of this Tribunal, when we are determining whether the evidence meets that standard. O'Callaghan v Loder has indicated quite clearly these types of proceedings (other than offences created by the Anti-Discrimination Act), are civil proceedings. In civil cases the mens rea does not exist in the criminal sense and as a result, whether the respondent has a "belief" or "an honest and reasonable belief" is not relevant. What is relevant is that the complainant must prove that the respondent took into account the complainant's marital status (in this case) when performing the act which resulted in the discrimination. This she has done. While the respondent is a company, it is bound by the actions of its officers and as indicated earlier it appears the Company "hoped" (more than anything else) that the information it has labelled "commercially sensitive" would not fall into the hands of the rival company. The Tribunal is of the view that the reason given by the company is not the real reason she was transferred. In addition, we do not accept that the officers of the company had this belief at the time. This finding is based on the reasons given earlier when we dealt with the topic "commercially sensitive information". In our view the complainant was transferred because she was married to a fellow employee who left to join a rival company. She has proved her complaint (121 of 1996) made on the basis of discrimination on marital status. While we have been addressed by the parties' legal representatives concerning the fact that the first complaint was also based on discrimination on the basis of sex, we find that the evidence is such that it does not support such a claim. Complaint No. 2 of 1997 We accept the submissions of the respondent that there was no vacancy to be filled following the rearrangement of duties following Mr Meek's departure, as per the evidence. Under the circumstances the complaint is dismissed. Complaint No. 25 of 1997 It does appear the respondent has had to review positions in the Company due to the introduction of the new Clerical and Administrative Employers Award. There was no disagreement amongst the parties that the duties involved in the performance of Ms William's job at Maitland were of a lower level than those of her job as Credit Manager, Grade 1 (old classification) at THE STAR. If the complainant has any complaints about the implementation of the Award, the Award itself provides a remedy for these complaints. It does not appear to the Tribunal that the respondent has breach the Anti-Discrimination Act (Section 50). Complaint is dismissed. Conclusion Having found Complaint 121 of 1996 proved, the Tribunal has reviewed the orders sought and it is of the view that the appropriate orders are those sought in paragraph 17 (a) and 17 (e) of the Points of Claim (i.e. damages and reinstatement). The Tribunal, in assessing the amount of damages, has considered the whole of the circumstances of this case, and in particular, the report of Dr Lambeth. It has borne in mind the statement of economic loss submitted by the complainant. On the other hand it has also carefully considered the submissions of Mr Neil, that the complainant has suffered: ° no loss of pay; ° no loss of entitlements; and ° though she has had to travel further to Maitland than she did to Newcastle, she was paid for the extra time involved. The Tribunal considers the respondent should pay the complainant the sum of $10,000 general damages in respect of this complaint. Dr Lambeth has said that "the major treatment that is required is for Mrs Williams to be transferred back to Newcastle into her old job." The Tribunal is of the view that the complainant should be returned to her old position and will make the order sought by the complainant under Paragraph 17(e). On the question of cost we have considered what each party has had to say and the Tribunal is of the view that in accordance with Section 114 (1) each party should pay their own costs. No order as to cost. 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