Anti-Discrimination Decisions

[2008] TASADT 01

Catchwords:

Equal opportunity - Discrimination on the basis of race and/or industrial activity - Discrimination in employment - Whether conduct amounts to discrimination - Whether breach of section 17 or 19 Anti-Discrimination Act - Whether direct discrimination is "reasonably necessary" to comply with a law of the State or Commonwealth - Whether Act applies to direct discrimination - Anti-Discrimination Act 1998 (Tas) ss14, 15, 17, 19, 22, 24, 41, 104

Representation:

Reasons For Decision

1. By complaint dated 3 March 2002, the Complainant complained to the Anti-Discrimination Commissioner that she had been discriminated against in her employment on the basis of race and industrial activity.

2. Despite the complaint relating to a course of conduct which commenced well before the period of 12 months prior to making the complaint, the complaint was accepted for investigation by the Commissioner and eventually referred to the Tribunal for Inquiry, pursuant to s78, Anti-Discrimination Act 1998 ("the Act"). I conducted that Inquiry over a period of five consecutive days commencing on 13 November 2006. This is my decision upon that Inquiry.

3. The Complainant is a registered nurse of Asian background/origin. Her unchallenged evidence demonstrated that she had commenced employment as a registered nurse with the Second Respondent in 1991 at the Mayne Street Day Centre. From 1991 to 1997 she worked at that Day Centre. The Complainant’s role at Mayne Street was a shared role as coordinator. Her evidence was that she was very happy there.

4. In 1997 there was a reorganisation within the Aged Care Services section of the Second Respondent. As a result of that reorganisation, the Mayne Street Day Centre became part of the Community Dementia Service. The three staff from Mayne Street, of which the Complainant was one and whom, I infer, had previously acted autonomously, joined, what the Complainant described as "a well established group of 10 staff" from another area of Aged Care. This group was under the leadership of the First Respondent. As a result of that reorganisation, the First Respondent became the direct supervisor of the Complainant.

Although I did not receive much evidence about the specific duties of various members of the team, it is important to note that, as a registered nurse, the Complainant had a position of seniority and authority within the hierarchy of the team. The team also included enrolled nurses and personal carers. I will proceed on the basis that, at the least, a registered nurse is regarded as professionally senior to these occupations.

5. The Complainant’s complaint, confirmed by her evidence, is that upon joining the Community Dementia team ("the Team"), she was subjected to unexplained hostility and unfavourable treatment, particularly with respect to the allocation of work. Initially, she attributed this reaction to her Asian background.

6. On 6 May 1998 the Complainant forwarded a letter to Susie Reid. Ms. Reid was the Manager who was the immediate superior of the First Respondent. This letter expressed concern over a practice which the Complainant claimed was in breach of guidelines provided by the Tasmanian Nursing Board i.e. matters relating to the storage and distribution of medication. An important aspect of this complaint was that staff other than registered nurses, were being allowed to administer drugs without the supervision of a registered nurse. It is common ground that the Complainant did not raise these concerns with the First Respondent, or indeed any other member of the team, before writing the letter to Susie Reid.

7. It is clear from the evidence, and I find, that this action on the part of the Complainant i.e. complaining about the practices of the team, shortly after joining it, without first raising these concerns with her immediate supervisor or other members of the team, did cause some resentment towards her. The Complainant gave evidence that she went directly to Susie Reid on the advice of her union. However, it is clear to me that a further reason for doing so without first approaching members of the team was that, even at that early time, and whether the feeling was justified or not, she felt that she was an "outsider" in the team.

8. Shortly after the complaint, on 2 June 1998, a complaint was made against the Complainant by a staff member Carol West. This complaint was put to the Complainant and she was required to respond. No action was taken as a result of the complaint. The relationship between the Complainant and the rest of the team appears to have worsened after those events.

9. Matters came to a head on 24 August 1999 at a team meeting, at which the Complainant was not present. I will say more about this team meeting later. Suffice to say for the present, that a number of members of the Team aired grievances about the Complainant. In general terms, those grievances seemed to relate to the manner in which the Complainant related with and treated more junior members of the team. The meeting was led by the First Respondent.

10. A consequence of the meeting was an attempt at mediation. The mediation was arranged by Managers senior to the First Respondent. The mediation was conducted by Tony Newport. It involved the First Respondent and several members of the Team and the Complainant. It resulted in a written agreement. The agreement deals with a large number of matters relating to the relationship between the Complainant and staff under her supervision. Insofar as it deals with the relationship between the First Respondent and the Complainant, it simply provides for ongoing meetings between them and States in a general way that they agreed to meet and "discuss each others roles and responsibilities in order to reach a joint understanding".

11. Despite this agreement, it is apparent that relations between the Complainant and other members of the Team, including the First Respondent, did not improve and, over time, deteriorated. Furthermore, from time to time, complaints were made against the Complainant by clients, relatives of clients, and other members of the Health Department outside the team. I should comment at this point that the Complainant presented evidence from a significant number of persons, including clients and other professionals, who attested to her caring nature and good work within her role with the Community Dementia Team. Except as specifically stated by me herein, I make no judgment about the subject matter of these complaints. I refer to the complaints simply because they are relied upon by the Complainant as evidence of the unfavourable treatment of her by the First Respondent, in particular with respect to their collection, the failure to disclose the complaints to her when they were made and the First Respondent’s reaction to some of the complaints.

12. On 15 September 2001 a written complaint was made to the First Respondent by the daughter of a client of the Team, in respect of comments made by the Complainant to her. This complaint was made by Cindy Simmons. On 16 October 2001 the First Respondent forwarded a memorandum to the Complainant raising this complaint with her and requiring a response in writing. The Complainant provided that response on 22 October 2001. There was a meeting between the Complainant and the First Respondent on 14 November 2001 to address issues arising from that complaint. The Complainant brought her union representative to that meeting. It seems that during the course of that meeting there was a reference by the Complainant to other incidents which were the subject of grievance by her. In mid December, the Area Manager from Mental Health Services, Wayne Fox, wrote to the Complainant and requested that she document these complaints. The Complainant did so.

13. This led to a further meeting which was held on 25 January 2002, and which was attended by senior managers, (Wayne Holt and Wayne Fox), the First Respondent, the Complainant, and the Complainant’s union representative. It is apparent from the letter written by Neroli Ellis, Branch Secretary of the Australian Nursing Federation, to confirm the meeting, that during the course of the meeting, the First Respondent stated that she had received complaints about the Complainant from other staff members. It is also apparent from that letter that the union representative, Angela Manion, asked Wayne Holt to have this claim investigated so that the Complainant could respond to the complaints. It is apparent to me that what then occurred was that Mr Holt canvassed various staff members who had previously made written complaints and who may have made oral complaints, and obtained several further written complaints. These were put to the Complainant.

14. By that time, the Complainant had left work on sick leave (She did this on 2 February 2002). She has not returned to work since that time.

15. The Complainant’s complaint is that she has been subjected to less favourable treatment than other persons in the team by the First Respondent on the basis of her race and industrial activity, in particular the complaint made to the Manager concerning the distribution of medication, and her resort to assistance from her union. The alleged less favourable treatment has a number of aspects to it, but can perhaps be summarised as an allegation that the First Respondent has deliberately "targeted" the Complainant with hostility and the encouragement of others within the team to show hostility towards the Complainant. It seems to me also that the complaint alleges conduct on the part of the First Respondent which, if I were satisfied that it had occurred on the basis of a specified attribute, constitutes conduct in breach of section 17(1) and/or section 19 of the Act.

16. The question for me is to determine whether or not, after the Inquiry, I find that the complaint has been substantiated.

17. I will now consider the specific ways in which the Complainant says the First Respondent has contravened the Act.

First Respondent:
Complaints:

18. The Complainant acknowledges that complaints were made against her, but says that they were trivial unjustified and unsubstantiated. She believes that the First Respondent has solicited and encouraged the making of complaints against her. She also complains that when complaints were made against her they were not brought to her attention and she was not given the "right of reply". In fact, she alleges that the First Respondent was engaging in the practice of collecting and storing complaints secretly, for the purpose of "future attacks on my practices".

19. Furthermore, the Complainant alleges that in respect of at least two complaints, the First Respondent has in fact written the complaints. She was not specific as to whether this was an allegation of blatant forgery or, alternatively, that the First Respondent had written the complaints and had staff members sign them in order to encourage and facilitate the making of the complaint.

20. The first complaint to which the evidence referred was a complaint from Carol West dated 2 June 1998. This complaint was clearly brought to the attention of the Complainant as she provided a response on 2 July 1998. The Complainant suggests that the timing of this complaint is important, as it was a complaint made apparently in response to the Complainant’s actions in complaining to Susie Reid.

21. As with all complaints, the Complainant denies that there was any legitimacy to the complaint. However, Carol West made further complaints in writing against her, one in June 1999 and a further complaint in February 2002. Furthermore, Carol West gave evidence. She said that she wrote the initial complaint because she felt insecure in her dealings with the Complainant, and that the complaints were justified. It was apparent to me that Carol West had very strong feelings about the matters in respect of which she had complained, and that the complaints, and the feelings which underlie them, were hers and had not originated with anyone else. I accept unreservedly the evidence of Carol West in so far as it concerns the fact that it was she who decided to make complaints, and that the complaints were made by her in relation to the matters that she felt strongly about and honestly believed to be valid. I find that the First Respondent had nothing to do with soliciting, encouraging or suggesting the making of these complaints of Carol West.

22. Furthermore, I make similar findings in relation to the other complaints which were the subject of evidence. Not all of these complaints were from other members of the Team; there were two complaints from student nurses Natalie Szysz and L. Style, as well as complaints from clients and relatives of clients i.e. Mary Carter, Dorothy Grueber, Mary Wise and finally Cindy Simmons. Some of these persons gave evidence and each of them testified that they had made genuine complaint about matters which they genuinely believed to be valid. I accept the evidence of the witnesses called by the respondent in that regard, insofar as such evidence relates to the genuineness of the complaints.

23. In respect of complaints made before February 2002 the Complainant’s case is that the First Respondent solicited these complaints and then held them secretly as part of a campaign to gather evidence against her. The respondent denies this. She was asked in cross-examination as to why the complaints written in 1999 were not disclosed to the Complainant. Her evidence was that she had no idea as to why this was the case and in any event, had very little to do with the complaints. She recalled some discussion with Susie Reid about obtaining evidence, but in general terms did not see the complaints. The two complaints from the student nurses had been left on her desk, but she did not discuss these with the Complainant because she did not feel comfortable doing so.

24. I accept her evidence about this. I do not believe that the First Respondent engaged in a deliberate process of collecting complaints against the Complainant. Even in February 2002, when it is clear that complaints were solicited, often from persons who had already made earlier complaint, I find that those complaints were collected by managers senior to the First Respondent and further that they did so specifically because of the request of the Complainant’s union representative that the complaints be documented, in the circumstances described above (see paragraph 13). I will say more about these complaints later in these reasons.

25. The origin of the complaints by various persons is indicative of the general problems which existed in the interaction between the Complainant and the balance of the Team. There can be no doubt that these problems were in existence. I make no finding as to the validity of the complaints against the Complainant. The question for me is whether or not the complaints and the problems that they manifest resulted from conduct of the First Respondent, which is in breach of the Act.

26. There are many factors which may have contributed to these difficulties. On the one hand the Complainant was an "outsider" coming into an established team. She held a senior position within the team. There may well have been resentment against her because of her attempts to exercise authority and her actions in making complaint to the Manager about the medication issue. On the other hand, I suspect, that the Complainant may well have been somewhat insensitive to the perception of others and perhaps lacked skill in integrating herself into position of leadership without causing resentment. Whatever the cause, I am satisfied that the said difficulties which were experienced by the Complainant, in her interaction with the other members of the team were not the result of any positive conduct including discrimination or incitement, on the part of the first respondent.

27. I accept also that the First Respondent did not deliberately withhold complaints from the Complainant, as part of a deliberate course of conduct to "target" her in the future. To the extent, she has not passed on complaints, I am not satisfied that she thereby was treating the complainant less favourably than others, on the basis of the Complainant’s race, or industrial activity in which she had engaged.

Staff Meeting – 24.8.1999:

28. The Complainant relied on this meeting as an example of the conduct of the First Respondent in alienating the Complainant from the balance of the team. Her evidence was that she had come across some minutes of the meeting when they were left on the shelf for the staff to read. The contents of the meeting had not been addressed with her. However, her real complaint was that the meeting had been organised by the First Respondent in her absence, and the First Respondent had in fact led an attack on her during the course of the meeting.

29. The First Respondent’s evidence about the meeting was that it was a normal team meeting, but that she had intended to raise at that meeting a problem that she had been "mulling over" for considerable period of time i.e. what she detected to be ill feeling within the Team. Her evidence was that she in fact believed that the ill feeling was directed against her, as the leader of the Team. She says that she gave each person a blank sheet and asked them to write down any concerns they had about her. Her intention was to clear the air. The Complainant was not present because she was on leave at the time and, as far as the First Respondent was aware, had no particular significance with respect to the ill feeling.

30. The First Respondent’s evidence was that she was completely unprepared for what took place at the meeting. The ill feeling was exposed, but was directed against the Complainant.

31. The minutes of the meeting are in evidence. The Complainant is not mentioned in the minutes. There is reference to several members of the Team expressing concern about matters such as contributions being under valued and a general lack of respect.

32. Several witnesses were present at the meeting and gave evidence as to their recollections. In general terms these witnesses support the version of the meeting given by the First Respondent, although they all confirmed that the meeting, at least in the latter part, became focused on the Complainant. For example, Fiona Medhurst who was present at the meeting gave evidence that the meeting commenced by relating to the tension that was within the Team, but to her recollection, had not been called specifically in relation to the Complainant.

33. I accept the respondent’s explanation as to her motivation in calling the meeting and further as to the events which transpired at the meeting. I find that the First Respondent did not call the meeting specifically about the Complainant but rather because of a level of tension which had built up in the Team. I find further that once the meeting commenced, and members of the Team were allowed to express themselves, they directed their complaint against the Complainant. Having listened to their evidence and having read the minutes, it is apparent to me that what was of concern to them was a common feeling that the Complainant did not show them respect and did not appreciate their contribution to the work of the Team.

34. This meeting is a further example, in my view, of the problems which had arisen within the Team as a result of the personality conflict between the Complainant and others, and the fact that the Complainant was having difficulty in integrating herself into an established Team. Once again, however, it does not demonstrate discrimination, vilification or any other breach of the Act on the part of the First Respondent.

Fabrication of complaints after 25 January 2001:

35. The Complainant relies on the production of written complaints after the meeting of 25 January 2001 as evidence that the First Respondent was targeting her by fabricating and soliciting unsubstantiated complaints against her. Her argument is that because the written complaints were produced after her union requested their production, that they had not been in existence prior to that request and, accordingly, that they were fabricated to back up the unsubstantiated statement by the managers that these complaints existed. She says that when she raised the matter of "informal complaints" with the First Respondent during the meeting on 25 January, she was told by the First Respondent that she did not have the staff’s permission to inform her of these complaints. Thereafter, there was the formal request to investigate the question of the complaints and written complaints were produced.

36. It seems to me that the complaint goes further and alleges that at least two of the complaints were actually forged or at least written by the First Respondent.

37. Leaving aside for a moment the question of the forgery of complaints, I have difficulty in following the Complainant’s logic. It is clear from the evidence and I so find, that numerous members of the team as well as some persons outside it, had made complaints to management about the conduct of the Complainant from time to time. When complaints were made by clients to the First Respondent, she did take some action. This action is also the subject of complaint and I will deal with same below. In respect of the complaints by the staff, management attempted to react by organising a mediation. In my opinion, this was a completely appropriate response, it did not target one group or the other nor attempt to vindicate or discredit the complaints. It simply attempted to deal with them by bringing in an outside consultant, Mr Newport, to resolve the problem. In the end, this attempt was unsuccessful. Despite this, there is no basis in my opinion for concluding that the Complainant was deliberately targeted by the First Respondent.

38. In any event, it seems to me that the actions of the managers senior to the First Respondent in documenting complaints by staff, was a completely reasonable response to the request which had been made by the Complainant through her union representative. I find nothing unusual or sinister about it. It was the Complainant who had raised the question of complaints and had requested the right of reply. The Respondents were simply responding to the Complainant’s request.

39. The Complainant alleges that two complaints, written after the meeting on 25 January 2002 i.e. those of Damien Donohue and Cindy Simmonds, were in fact written by the First Respondent. She relies on this fact as evidence of the First Respondent’s targeting of her.

40. Damien Donohue’s statement is undated but noted to have been written in February 2002. It does not attack the Complainant but does note that the Complainant has used him "on a regular basis… to debrief about her illness feelings that she has about the Com Dementia Team and in particular our manager". It goes on to say that he has attempted to have her change her views, unsuccessfully, and that this has been "not good for the Team as well as herself and I feel I am constantly banging my head against a brick wall".

41. Mr Donohue in evidence confirmed that this statement was his. He confirmed also that it had not been written by him but had been written by another person at his dictation. He confirmed that the words were his and it was what he had wanted to say. He could not recall who asked him to write a complaint.

42. It was apparent from his evidence that he had considerable sympathy and respect for both the Complainant and the First Respondent. It was apparent also that he saw the problem as the Complainant’s inability to accept the authority of the First Respondent and adjust to working under her.

43. I accept the whole of Mr Donohue’s evidence. Nothing sinister can be drawn from the fact that somebody else wrote the complaint at his dictation. I infer that he was asked by senior management, probably not the First Respondent, to produce a written statement as to his perception of the Complainant, in response to the request made by the union representative after the January 2002 meeting.

44. Cindy Simmonds’ letter was written on 15 September 2001. She is the daughter of a client of the Team, who had been cared for by the Complainant. Her letter complains of comments made to her by the Complainant. In particular, it says that the Complainant had told Mrs Simmonds to "butt out a bit as I was taking over and running my mother’s life and taking her responsibility away from her towards Dad".

45. Mrs Simmonds evidence is that she was upset by these comments. She confirmed that she wrote the letter and gave it to another staff member to give it to the First Respondent. There was no follow up and she did not take the matter any further.

46. I accept the evidence of Mrs Simmonds. I find that she wrote the letter and that she wrote it because she was upset about comments which had been made to her by the Complainant. Again, I make no judgment, and it is not necessary for me to make any judgment, as to the rights or wrongs of the particular incident. What is important is that it was a legitimate complaint, it was not fabricated nor solicited by the First Respondent and it does not support the Complainant’s allegation that the First Respondent has unfairly and illegally targeted her.

Allocation of Work:

47. The Complainant alleges that she was excluded from certain aspects of work by the First Respondent. The allegation is that this was part of the deliberate campaign against her based on her race and/or industrial activity. In particular:

(a) She says that she was discriminated against in that she was allocated far less "assessments" than other registered nurses in the team.

(b) She says that she was never asked to attend client assessments in hospital, or case conferences or family conferences. In this respect she says that she was treated differently to other registered nurses on the team.

48. The First Respondent denied that there was any discrimination involved in the allocation of this work. Her evidence is that from April 1997 to December 2000 it was her role to do assessments. She agrees that the Complainant may not have done many assessments, but says that if this occurred, then it was simply due to the exigencies of the work place e.g. the Complainant’s absence due to annual leave, long service leave at the Day Centre. She says that there are many variables that would have affected the allocation of this work.

49. There was considerable evidence concerning the detail of allocation. However all this evidence shows is that the Complainant did, perhaps, receive less of this type of work than SOME of the other registered nurses. She also received more than at least one of them. I accept that this is what the figures show but this does not of course mean that she was treated less favourably by the First Respondent, particularly on the basis of the relevant attributes.

50. I accept the First Respondent’s evidence that there was nothing deliberate in relation to the allocation of this work. I accept her evidence that she did not discriminate against the Complainant in this way. There is absolutely no evidence which would support the Complainant’s assertions in that regard and in any event I find the First Respondent to be a believable and credible witness in this respect.

Work Place Mobbing:

51 It is clear from the evidence that the Complainant did become the subject of resentment and hostility by other members of the Team. Tony Newport, the mediator, in my opinion, summed the situation up well in his letter dated 2 November 1999 when he said the following:

"This is a complex situation.

Most DCT members have an expectation that Ann will simply agree with the majority in regard to how things are done in that area of work.

Ann is prepared to make her own decisions based on her judgments at the time. She is also not particularly diplomatic in that she goes about her business with a fairly ruthless singularity of purpose.

I am satisfied that whilst Ann is neither a compliant nor a gregarious employee neither of these character traits constitutes a reflection on her competency and judgment. I am also satisfied that this has not been an easy situation to manage …"

52. Linda Shallcross, who is a director of an organisation called Workplace Mobbing Australia, and has qualifications in management, described a process which she believed applied to the Complainant’s situation. This process she calls Workplace Mobbing. It describes "a form of bullying where the perpetrators gang up against those targeted with the intention to force them out of their employment". Her evidence was that anyone who is different is vulnerable, and a trigger for the mobbing can be whistle blowing, such as the report made to Susie Reid about the failure to follow protocols with respect to medication distribution.

53. I do not think that Mrs Shallcross’ evidence was particularly helpful. All it really does is attempt to apply a general label to a specific factual situation. Having said this, I have no doubt that the relationship between the Complainant and other members of the Team was strained and eventually broke down completely. I have no doubt that she was perceived by members of the Team as being an outsider and that they were resentful towards her.

54. As Mr Newport, says it was a complex situation. The Complainant had come into the Team from the outside. She had come in in a position of some authority. She, in some respects, lacked diplomacy and was ruthless and focused on proper procedure and protocol. I have no doubt that she was capable of at least creating a perception that she was not interested in the opinions of those lower in the hierarchy than her. I do not criticise her for these character traits, but they are factors which must be taken into account in assessing why things developed as they did. The point I make is that the situation in which the Complainant found herself arose from a variety of factors.

55. The question which remains is whether in the context of this complex situation, I am satisfied that the First Respondent has breached the Act in the manner alleged, in particular, by deliberately targeting the Complainant and treating her less favourably than others within the team.

Role of the First Respondent:

56. In general terms, the First Respondent denies that she has either treated the Complainant unfavourably or unfairly or improperly in any way, and that in any of her dealings with her, she has been acting on the basis of the Complainant’s race or on the basis of the Complainant having engaged in "industrial activity". She concedes that there were personality and performance problems within the Community Dementia Team during the relevant period and further that there were specific problems in terms of the Complainant’s interaction with the Team. She believes that the Complainant has made a personal issue of matters which were properly raised with her in respect of her dealings with clients and other members of staff.

57. In relation to the First Respondent I make the following findings:

(a) I do not believe that the First Respondent had any initial hostility or dislike towards the Complainant nor that she led other members of the Team in developing such an attitude. As I have already stated, I think it is quite likely that the First Respondent also felt herself to be an outsider in the Team and was principally concerned with attempting to manage the diverse elements of the Team.

(b) However, as things developed, and in particular as it became apparent that the Complainant was in conflict with other members of the team, I think it is likely that she has seen the Complainant as a "trouble maker" and has, perhaps unconsciously, treated her as such. Hence, I do believe that from time to time she has been angry and hostile in comments that she has made to the Complainant. I accept the evidence of Susan Openshaw that she did in fact over hear a meeting in an open office between the First Respondent and some members of the Team at which the Complainant was not present, when the First Respondent said words to the effect that the Complainant "is causing trouble again, telling the staff what to do, interfering and carrying out too much care". I accept Mrs Openshaw’s evidence that she recognised the speaker of these words to be the First Respondent.

(c) Despite this finding and as I have already found, I do not accept that the First Respondent engaged in a deliberate campaign which targeted the Complainant, nor that she maliciously collected and kept complaints against the Complainant. However it is likely in my view that from time to time she became exasperated by the Complainant and hence made comments such as that reported by Mrs Openshaw.

(d) I also do not accept that the First Respondent treated the Complainant less favourably nor incited hatred, serious contempt or severe ridicule of her, except that from time to time she made a hostile comment towards her, or discussed her in her absence in a manner similar to that described by Mrs Openshaw. To the extent that she did engage in such conduct, I do not accept and am not satisfied that she did so on the basis of or on the grounds of race or because the Complainant had made the complaint to Susie Reid. It was not the Complainant’s race nor specifically the taking of industrial action, that prompted this reaction in those with whom she worked including the First Respondent. Rather, in my opinion, it was the overall situation caused by the breakdown in the relationship between the Complainant and other members of the Team which caused the difficult management situation which in turn provoked this reaction from the First Respondent. It may not have been ideal management on her part, but on the other hand, I am not satisfied that she has engaged in direct discrimination against the Complainant nor acted in breach of section 17 or 19 of the Act.

Mrs Carter:

58. A specific aspect of the complaint relates to a client named Mrs Carter.

59. The Complainant’s evidence about this aspect of the matter was that she had been prevented by the First Respondent from visiting certain clients because those clients had complained about her, in particular that she was "bossy". In relation to Mrs Carter the complaint was a little more pointed, the complaint relayed through the client’s son by email dated the 11th January 2001 indicated that the client was upset about certain aspects of her care. However, during the evidence it transpired that this client had effectively asked that she not be cared for by nurses of Asian origin.

60. The First Respondent accepted that from time to time she had received complaints from carers of clients to the effect that the Complainant had a "bossy attitude". The First Respondent agrees that she had spoken to the Complainant about these complaints and had counselled her on the basis that she should attempt to speak more slowly. The Complainant attributes this to a criticism of her mode of speech originating from her Asian origin.

61. In relation to Mrs Carter, the First Respondent acknowledged that she had been told by Mrs Carter’s daughter that "Mum doesn’t like Asians". There had been an explanation to the effect that Mrs Carter had a strong dislike of people who she saw associated with the Japanese and World War II and that this dislike originated from her experiences in that War.

62. The First Respondent acknowledges that she did in fact speak to the Complainant and suggested to her that she not visit Mrs Carter for a short period. She explained that Mrs Carter was suffering from Alzheimer’s disease, a form of dementia, which, inter alia, caused severe short-term memory loss. Her evidence was that in her view, she had a duty to exercise reasonable care in and about the treatment of Mrs Carter and that in relation to patients with dementia and short term memory loss, that duty involved being sensitive to their attitudes, likes and dislikes without making judgment and effectively working in the reality perceived by the patient. She considered that to ignore Mrs Carter’s complaint and attitude would cause her stress and anxiety and that this would be detrimental to her psychological health.

63. In my opinion the First Respondent’s conduct in instructing the Complainant not to visit Mrs Carter does amount to direct discrimination against the Complainant. She has treated the Complainant, on the basis of her Asian origin, less favourably than she would treat a member of her staff without that attribute or characteristic. I have no difficulty at all in concluding that effectively preventing the Complainant from carrying out her work, purely on the basis of her race, did amount to less favourable treatment and was conduct which amounts to direct discrimination as defined by section 14 of the Act.

64. The question is whether the Act applies to such discrimination, having regard to the provisions of section 22. That section provides that subject to the exceptions and exemptions specified at Part 5, the Act will apply to discrimination by or against a person engaged in, or undertaking any, activity in connection with any of the following:

"(a) employment

(c) provision of facilities, goods and services."

65. Having regard to the interpretation of that section as explained by Blow J in Burton -v- Houston (2004) TASSC 57, it seems to me that the relevant conduct was clearly in connection with the Complainant’s employment, and in connection with the provision of services.

66. However, the question is whether or not the conduct comes within an exception set out in Part 5. In particular, I have regard to the following:

(a) Section 24 which provides that a person may discriminate against another person if it is reasonably necessary to comply with a law of the State or Commonwealth.

(b) Section 41 which provides that a person may discriminate against another person on the ground of race in relation to employment if the discrimination is based on a genuine occupational qualification or requirement in relation to a particular position.

67. In relation to section 24, I am satisfied that the First Respondent was required by law, to exercise reasonable care in respect of the care and treatment of Mrs Carter. The question then becomes whether it was reasonably necessary in order to comply with this obligation that she discriminate against the Complainant in the manner described above.

68. The test under section 24 is that the discrimination be "reasonably necessary" to comply with the law. It seems to me that the basic test is that of necessity, but it must be something less than absolute necessity, it must be "reasonably necessary". Whilst the test is not exactly the same, when considering the question of whether a requirement was "unreasonable in the circumstances" in Bock -v- Launceston Womens Shelter Anti-Discrimination Tribunal 2005 TASSC 23, Crawford J said this (at para 32):

"The test of reasonableness is an objective one and all the circumstances of the case are concerned, including the nature and extent of the discriminatory effect and the reasons advanced in favour of the requirement. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience….. In assessing reasonableness, careful consideration should be given to the activity to which the requirement relates, and as in this case, the objects that the imposition of the requirement are designed to protect".

69. In this case, some relevant considerations are as follows:

(a) The First Respondent, in discriminating against the Complainant, was doing so in order to placate a patient who suffered from an illness which by its nature, is likely to have deprived her of much of her reasoning capacity. I think I can assume and if necessary infer that a response to the patient based on "principled rationality" would have meant little, the result would still have been upset and anxiety.

(b) I accept the First Respondent’s evidence that to have ignored the client’s wishes and attitudes could have prejudiced her health in those circumstances.

(c) I do not under estimate the effect of discrimination such as this, on the Complainant. It is blatant racism, but the racism is that of a dementia patient. I do not believe that the First Respondent was condoning this attitude; she was attempting to mediate a solution to a difficult dilemma.

I think also, that the effect of the discrimination was enhanced by the strained relationships within the team. Had those relationships been strong and cohesive, the Complainant may well have felt the discrimination less keenly.

70. In the final assessment, it is a question of conducting the balancing exercise spoken of by Crawford J. In all of the circumstances, I conclude that the conduct of the First Respondent in discriminating against the Complainant was reasonably necessary to comply with her obligations under the law of Tasmania, to treat the patient with reasonable care. I find accordingly that the First Respondent was entitled to discriminate against the Complainant having regard to the provisions of section 24. Accordingly, the Act does not apply to that discrimination.

71. I do not need to consider the provisions of section 41. I doubt that those provisions would be applicable, simply because the discrimination on the ground of race is not a qualification or requirement in relation to the particular position. It was conduct engaged in the particular circumstances of the treatment of this patient. It seems to me that section 41 relates more to a qualification or requirement that relates to the holding of a position rather than specific activities undertaken during the course of employment.

72. In any event, as I have stated I do not need to consider the applicability of this provision.

73. My decision in respect of the First Respondent’s reaction to Mrs Carter’s wishes should not be interpreted as a general vindication of discrimination engaged in by an employer because of the operational requirements of the particular undertaking in which Complainant and respondent are engaged. I have found it to have been reasonably necessary in this case in order to comply with the First Respondent’s legal obligations and of paramount importance is the fact that the client making the unreasonable and otherwise illegal demands was suffering from an illness which affected her perception and reason. In my view, it would be a most serious matter if an employer discriminated against an employee on the basis of race, simply because of the wishes of a client, without the existence of the specific factors applicable to this case.

Decision in respect of the First Respondent:

74. It follows from what I have said above that I am not satisfied that the First Respondent has committed a breach of the Act, as alleged in the complaint. Accordingly, I find that the complaint against the First Respondent is unsubstantiated.

Second Respondent:

75. The Second Respondent is an "organisation" having regard to section 3 of the Act. By section 104, the organisation has certain duties. These duties include an obligation to "take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct". If the organisation does not comply with this section, then it is liable for any contravention of the Act committed by any of its members, officers, employees and agents.

76. It is clear, in my view, that the complaint relates to the conduct of the First Respondent. If I had found that the first respondent had committed a contravention of the Act, then this may have given rise to liability on the part of the Second Respondent having regard to the provisions of section 104. I did not detect, within the complaint, nor within the case the Complainant presented at the Inquiry, an allegation that the Second Respondent had contravened the Act, except insofar as it may have been liable for a contravention of the Act committed by the First Respondent.

77. It is true that in the complaint and during the course of evidence, the Complainant referred to complaints made against her by various members of the team, and the conduct of other employees of the Second Respondent including managers senior to the First Respondent. However, no such persons were named as respondents by the Commissioner when she accepted the complaint for investigation nor subsequently during the course of investigation or upon referral to the Tribunal. The Complainant did not conduct her case on the basis that other specified members of the Second Respondent had been guilty of contravening the Act, except in general terms to allege that the team, led by the First Respondent, discriminated against her as a group.

78. I have already made findings concerning the rift that developed between the Complainant and other members of the team. I reiterate my opinion that I am not satisfied that the problems which developed were as a result of the Complainant being discriminated against by other members of the team on the basis of her race or industrial activity or indeed any other specified attribute in the Act. Once again, had I found that there had been a contravention by employees of the Second Respondent, then this may have been a basis for liability on the part of the Second Respondent. However, I am not satisfied that there has been a contravention of the Act by any officer, employee or agent of the Second Respondent.

79. I find that the complaint against the Second Respondent is unsubstantiated.

80. Accordingly, I dismiss the complaint.