Aleksic v Commonwealth Bank of Australia [2012] QCAT 143

CITATION: Aleksic v Commonwealth Bank of Australia [2012] QCAT 143 PARTIES: Dusanka Aleksic (Applicant) v Commonwealth Bank of Australia (Respondent) APPLICATION NUMBER: ADL097-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: 19 March 2012 HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 29 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The complaint is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – race discrimination – where prior complaint to employer but allegation relied upon not made at that time Anti-Discrimination Act 1991, ss 7(g), 10, 11, 15, 133 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Ian Kennedy of McLaughlins, Lawyers RESPONDENT: Ms Dominique Grigg of Counsel, instructed by Gadens, Lawyers REASONS FOR DECISION [1] Ms Aleksic was employed by the Commonwealth Bank from January 2000 to August 2010 when she was retired on ill-health grounds. She has made a complaint to the Anti-Discrimination Commission of Queensland (ADCQ) under the Anti-Discrimination Act 1991 (the Act). The ADCQ referred the complaint to the tribunal for determination in so far as the complaint alleges that the Bank was vicariously liable for certain actions of an employee, Michelle Patterson. Ms Aleksic alleges that Ms Patterson -- 1 of 8 -- 2 made a comment to her in October or November 2008, namely ‘speak English you bloody wog’. [2] Ms Aleksic claims that the incident has exacerbated her medical condition. She seeks compensation for loss or damage caused, including for past and future medical costs; an apology; an order requiring that the Bank implement programs to eliminate unlawful discrimination; and interest on any compensation awarded. [3] The Bank denies any liability. It submits that the comment alleged was not made; or in alternative, if the tribunal accepts that it was made, it submits that the available evidence does not support a finding that Ms Aleksic’s medical condition was caused or worsened by the incident, and therefore, there is no basis for compensation to be awarded. [4] For the sake of completeness, I note that Ms Aleksic sought to amend her complaint after its referral from ADCQ to the tribunal to include other complaints. However, that application was refused.1 [5] Under the Act, both direct2 and indirect3 discrimination are prohibited in the area of work4 on the basis of attributes including race.5 An employer is vicariously liable for actions of its employees done in the course of work which contravene the Act unless it took reasonable steps to prevent the contravention.6 The evidence [6] Ms Aleksic provided a written statement to the tribunal and gave oral evidence at the hearing. She also relied upon evidence given by Mr Goran Radovic, and her husband, Mr Branislav Aleksic. The Bank relied upon the written statements of Ms Tracy Ellen West and Ms Michelle Patterson. [7] Ms Aleksic asserts that a man, whom she now knows to be Mr Radovic came into the branch of the Bank where she worked as a teller around October or November 2008. She says he could see from her name tag that her name appeared to be Serbian and he asked if he could speak to her in Serbian. He explained to her that he was having difficulties accessing monies in his account. Ms Aleksic says she discussed it with him in the Serbian language, when Ms Patterson said loudly enough for them both to hear, ‘speak English you bloody wog’. She says that she was extremely embarrassed and Mr Radovic said he did not want to cause her any trouble and left the branch. 1 Aleksic v Commonwealth Bank of Australia [2011] QCAT 342. 2 Section 10. 3 Section 11. 4 Section 15. 5 Section 7(g); schedule dictionary ‘race’. 6 Section 133. -- 2 of 8 -- 3 [8] She conceded that she had made numerous other direct complaints to the Bank during her employment with it about her treatment by various persons, including Ms Patterson, with which she provided copies of her diary notes about the alleged incidents. However, she did not make complaint about the incident which has now been referred to the tribunal by the ADCQ; nor was it referred to in her diary notes for the relevant period. She said this was because she thought that the complaint referred to the tribunal by ADCQ was a more serious complaint and she was scared about the ramifications for her employment. [9] In a 12 page complaint document addressed to the Bank from Ms Aleksic dated March 2009, which was tendered during the hearing, she makes an allegation against another person whom she says called her a ‘bloody wog’. This incident was alleged to have occurred some years earlier. In that document addressed to the Bank, Ms Aleksic also makes allegations against a variety of other persons who worked with her at various Gold Coast branches of the Bank, including Ms Patterson. [10] During her oral evidence, Ms Aleksic spoke about a person from ADCQ having told her that a variety of her complaints were too long ago, and asked her if there was anything that had occurred more recently. It was apparently after this, that the allegation was made about Ms Patterson’s comment to the ADCQ. At no time was this particular allegation made to the Bank directly. [11] Ms Aleksic acknowledges that she was diagnosed with depression in about 2001. She also conceded that in 2006, she was diagnosed with high levels of anxiety, although she asserted it was not severe in 2007. Ms Aleksic further says that she was demoted and given no hope of attaining the high position of which she was worthy. She says she left the Bank depressed and broken. [12] Ms Aleksic’s witness statement attaches a number of reports, including reports from Dr Lotz, a psychiatrist, and Mr Dorey, a psychologist. Mr Dorey summarises that in early 2007 Ms Aleksic was diagnosed with major depressive illness, and later, it appears in 2007, with anxiety disorder. Then in 2009, she was diagnosed with bipolar affective disorder. Ms Aleksic stated that she had not seen this report, despite providing it with her witness statement. Dr Lotz reports that her symptoms of depression were severe by February 2007. None of the reports refers to the incident which is the subject of the referral to the tribunal from ADCQ and the effect of it on Ms Aleksic. Dr Lotz states in one report that Ms Aleksic may exaggerate personal conflict in her workplace due to her illness. [13] Mr Radovic provided a written statement dated 14 February 2012. Although a direction of the tribunal required any application for remote attendance was required to be made 14 days before the hearing, oral application was made at the commencement of the hearing for Mr Radovic to give evidence by telephone. This course was opposed by the Bank, on the basis that there is an issue of credit concerning Mr Radovic’s evidence -- 3 of 8 -- 4 and this will be more difficult to determine if he is not present. In the interests of justice, I allowed Mr Radovic to give evidence by telephone. [14] Mr Radovic asserted in his statement that in about August or September 2008, that he had a problem when his account had been blocked and he could not access his money held in it. At the hearing he said the account was blocked on 2 October, 2008. His statement says that he went to the Broadbeach branch to ask what happened to the account, when he saw a person whom he now knows to be Ms Aleksic, with a name badge, “Dushka’ which made him think she may be from his country of Montenegro. He says he approached her and asked to speak to her in his language. Both of them could speak Serbian. He says he proceeded to explain his problem when a female Bank employee across from them said, ‘speak English you bloody wogs’. He recalled her as a slim, young woman with short blonde hair, whose name was ‘Michelle’. [15] He says that he did not want to get ‘Dushka’ into trouble, and so after the comment was made, he thanked her and left the Bank. In his written statement, he asserts that he went to another branch and resolved the problem with his account. Further, he says that a short time later, he met Ms Aleksic at his church and she asked him whether he had fixed his account problem. [16] Mr Radovic conceded at the hearing that his statement was incorrect to the extent that it said he resolved the issue with his account. His evidence was to the effect that the account was blocked after he spoke with his estranged wife. At the hearing, he told the tribunal that he had not resolved the issue and had not been able to gain access to the funds again at any time. He stated however that he went into many branches of the Bank to seek to have the problem fixed. [17] Mr Radovic also conceded that he had in 2009 provided a written document, which was tendered in the proceedings, describing the alleged incident, in which he also said he resolved the problem at another branch and in which he did not name the person alleged to have made the comment complained of in these proceedings. When questioned about his failure to name the person in the earlier document, he denied that he had later been told to name a particular person and said that he had looked at her name badge at the time. [18] He told the tribunal that subsequent to the incident at the Bank, he met the Aleksics, although he was not sure of the date, at church, he thought in winter in 2009. [19] Although his more recent statement is more rather than less detailed than the earlier one, when questioned about the events, Mr Radovic said that it was now some four years since the events and that he could not recall every detail. [20] Mr Aleksic did not provide a written statement. He gave some brief oral evidence about when he met Mr Radovic arising from an issue raised in -- 4 of 8 -- 5 the statement of Tracy West which had only recently been filed at the time of the hearing. [21] Ms West’s statement raises that Mr Aleksic and Mr Radovic worked for a period, including at the time to incident was said to have occurred, for the same bus company. Mr Radovic gave evidence that he came to Queensland in 2006, and from that time also attended the same church which the Aleksics attended. However, Mr Radovic and the Aleksics all say that they did not know one another at the time the incident is alleged to have occurred. The bus company, according to Mr Aleksic employed some 800 to 1,000 employees. He said that he did not think it was ‘possible’ he had met Mr Radovic at church before the incident, but was unable to give any basis for this assertion. Mr Radovic also said the bus line was a ‘big’ company. Both Mr Aleksic and Mr Radovic said that they did not attend church every Sunday. [22] Ms Michelle Patterson, a customer service representative with the Bank, denies making the comment alleged by Ms Aleksic and Mr Radovic. She says that Ms Alecksic was treated the same as any other employee at the Broadbeach branch of the Bank, by her and others at the branch. She says persons of numerous ethnic backgrounds are on staff at the branch. She says that she has long blonde hair, but conceded that she wears it to work in a bun or a ponytail. [23] Ms Tracy West is the Manager, Human Resources, Queensland region for the Bank. Ms West investigated the complaints made by Ms Aleksic in March 2009 about persons she had worked with at various branches of the Bank at the Gold Coast. The complaint against Michelle Patterson referred to the tribunal by the ADCQ was not included, although the complaint was made some four or five months after the incident was alleged to have occurred. Specifically, 11 other complaints were included against various staff members at various branches where Ms Aleksic had worked. One of the complaints was against Ms Patterson, but not the one which is the subject of this referral to the tribunal. [24] Ms West says that during a taped interview on 6 April 2009, she specifically asked Ms Aleksic about any complaints she had about Ms Patterson, but the alleged incident which is the subject of the ADCQ referral to the tribunal was not raised by Ms Aleksic. According to the copy of the transcript made by Ms West, Ms Aleksic said that Ms Patterson was racist, but when asked why she thought that was so, she said essentially that she had once caught Ms Patterson rolling her eyes when she said she was from Serbia, but that Ms Patterson had not said anything: Ms Aleksic just felt that she was racist. [25] Ms West’s investigation concluded that all but one of the allegations was unsubstantiated. The exception related to a complaint against Ms McAlister, the then manager of the Broadbeach branch who accessed a staff survey using Ms Aleksic’s login. Ms McAlister was dismissed as a consequence of the incident. Ms West confirmed that a number of the -- 5 of 8 -- 6 staff in the branches whom she spoke with during the investigation were from various ethnic backgrounds, including Ms Aleksic’s. [26] While conceding that not every interaction with a customer is recorded in the CommSee computer system used by the Bank, Ms West also gave evidence that Mr Radovic’s account had not been accessed in CommSee at any time in the second half of 2008, which would have been necessary to investigate any issue raised about Mr Radovic’s account. However she provided a copy of records showing that there was an interaction recorded on CommSee on 29 April 2009 when the co-signatory on the account who had placed the stop on it inquired about removing it. [27] While conceding that Ms Aleksic was in the lowest position within the Bank, she says that Ms Aleksic was not demoted. Discussion and Decision [28] Ms Aleksic and Mr Radovic say that they heard, respectively, Ms Michelle Patterson or a young woman named ‘Michelle’ say the words, ‘speak English you bloody wog’ or similar words when Mr Radovic came into the branch in late 2008, and spoke with Ms Aleksic in Serbian. Ms Patterson denies that she made the alleged comment. Ms Aleksic relies upon Mr Radovic as independently corroborating her evidence. [29] However, I have concerns about the reliability of Mr Radovic’s evidence. It is of concern that Mr Radovic appears to have recently recalled more detail about the incident, since his initial brief written statement about it in 2009. Also, he conceded that some parts of his statement prepared for and filed in the tribunal more recently are inaccurate. Also in his recent statement, he named the person who made the comment as ‘Michelle,’ and has now since the recent statement apparently recalled the date of the alleged incident with some greater specificity. Given that the event, which was very brief, is now over 3 years ago, increasingly greater recall by Mr Radovic at this stage seems somewhat improbable. His comments to the effect that the events are almost 4 years ago, and he cannot recall all of the details are more realistic and at odds with the details recently revealed by him. [30] Although it is clear that not all interactions with a Bank client are recorded in the CommSee computer system, Mr Radovic’s evidence was that he went into many branches of the Bank to seek to have his problem fixed. However, there is no record of any Bank officer having accessed his records at his request in order to ascertain what the problem was. If he had enquired on numerous occasions, as he says he did, it would reasonably be expected that there would have been several occasions on which Bank staff accessed his records in an effort to assist him. As there are no such records, and the only CommSee record according to Bank records relates to a co-signatory’s enquiry considerably later, it raises doubt about whether Mr Radovic did seek assistance at the Bank regarding the issue at all. -- 6 of 8 -- 7 [31] Mr Radovic and Mr Aleksic worked for the same bus company at the time the incident is said to have occurred and Mr Radovic had regularly attended the same church that the Aleksics attended, at that stage for several years. Despite these apparent links between their lives when their paths might reasonably be expected to cross, Mr Radovic and the Aleksics all deny that they met until some time in 2009. This seems inherently improbable to me. Even if I am wrong about that, on the basis of the other issues discussed, I have concluded that his evidence should be given no weight. [32] Due to the inconsistencies in the detail contained in his statement as opposed to the evidence given at hearing; the improbability of Mr Radovic’s increasingly detailed recall about some aspects of the alleged events; and the lack of any CommSee records to corroborate that he made enquiries about his account; I consider Mr Radovic’s evidence unreliable, and I have placed no weight on it. [33] Instead, I have formed my conclusions based on the other available evidence. [34] The complaint was not at any time raised directly with the Bank. Ms Aleksic did not refer to the comment having been made in her diary notes for the period which she provided to the Bank with her complaint of March 2009. Nor did she raise it with the other complaints made at that time, or later when Ms West interviewed Ms Aleksic while investigating the complaints and specifically asked about complaints against Ms Patterson, despite telling Ms West that she felt Ms Patterson was racist because she felt it and that she had caught Ms Patterson rolling her eyes when Ms Aleksic said she was Serbian. [35] Ms Aleksic says that she did not raise it because she saw it as being a more serious complaint than the others she made and she was concerned about the ramifications for her employment. Despite her stated concerns, Ms Aleksic was prepared to make allegations to Ms West that Ms Patterson was racist on other bases. [36] Ms Aleksic also made submissions that it was reasonable for the complaint not to have been made at the time, because it related to events in the branch in which she continued to work, whereas the other similar complaint made by her related to an employee with whom she no longer worked. However given that she did nevertheless make other complaints in that lengthy complaint document of March 2009 about Ms Patterson and Ms McAlister both of whom worked in the branch, and, in particular, made allegations to Ms West in interview that Ms Patterson was racist, this submission is not compelling. [37] Ms Aleksic herself concedes that she made the allegations which are the subject of the referral from the ADCQ only after the ADCQ told her that the complaints she was raising were too old. -- 7 of 8 -- 8 [38] Ms Aleksic submits that the tribunal is entitled to take into account in its overall assessment of the evidence the substantiated complaint against Ms McAlister. She says that this demonstrates that the allegations made in the complaint are not entirely isolated from other conflict. However, conflict of itself does not constitute discrimination, and so I do not consider this a compelling argument. [39] The absence of any reference to the alleged incident in the more contemporaneously prepared documentary evidence, including the March 2009 complaint to the Bank, the diary notes of Ms Aleksic, and the transcript of the interview between Ms Aleksic and Ms West, all suggest that at the time of the investigation by Ms West, no such comment as alleged had been made by Ms Patterson. [40] I am not satisfied on the balance of probabilities that the comment as alleged by Ms Aleksic was made by Ms Patterson. It follows that I do not accept that there has been a breach of the Act for which the Bank could be vicariously liable. [41] The complaint is dismissed. -- 8 of 8 --