Commissioner for Equal Opportunity e-bulletin

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May 2020

From the Commissioner - We are all in this together

Throughout the COVID-19 experience I am sure you have all heard the phrase, ‘we are all in this together’.

It is a statement that indicates social cohesion, a level playing field and a statement, as Commissioner for Equal Opportunity in Western Australia, that has my full support.

However, in times of disaster do we really support all or just the majority, the people most like us, and do we look for targets to channel our fear?

It saddens me to receive enquiries and complaints and see reports in the media that people from Australia’s Chinese community are being targeted. Why, when they have suffered at the hands of this virus just as everyone else?

Racism will not stop people from getting sick and it will not improve the economy, it will only contribute to social dysfunction.

I am also concerned about those putting procedures in place to best protect the majority against COVID-19, while already vulnerable minority groups are unable to access proper assistance.

For people with a hearing impairment being able to access vital information has been difficult.

A big issue for many with a hearing impairment is communicating with frontline health workers who wear facemasks, as facemasks block out more than germs.

People who have substantial hearing loss use lip reading and facial expression to support their understanding of what is being said.

For those with lesser levels of hearing loss, not seeing someone’s mouth impacts on their ‘hearing’ and comprehension.

There are surgical masks on the market that have a clear panel that allow the wearers’ mouth to be seen, which seem like an excellent solution for those who rely on lipreading.

In these times, when face to face health consultations are being replaced by telephone and video calls, health professionals organising those calls must make sure they are able to communicate by text, use the National Relay Service, caption video calls or augment them with the use of an interpreter for people who rely on Auslan.

The same must be said for official announcements in the media.  It has been encouraging to see the use of Auslan interpreters for Government announcements; however, on so many occasions the interpreter is a distant figure in the screen and the signing could not be followed on anything less than a large home TV screen.

It is estimated that more than 1.2 million Australians rely on captions every day.

Captions are also important for people with English as a second language, children with learning difficulties, older people who may use hearing aids or cochlear implants and people who have no aided support to assist with their hearing.

Captions are vital aids for these people trying to access important information away from home, such as in airports, hospital waiting rooms and hotels.

The peak national organisation, Deafness Forum, is advocating for emergency announcements to be ‘open captions’ and not ‘closed captions.’

Open Captions are a permanent feature of a video, so you cannot switch them off and they will appear in any replays or simultaneous transmissions on social media.

Closed captions are not as effective because not everyone has a television that will broadcast closed captions, or the understanding of how to activate closed captions.

Another vulnerable group is the elderly.

The Australian Council of Human Rights Authorities issued a communique reporting our elderly community is being targeted by COVID-19 scammers and suffering elder abuse at the hands of family members desperate for access to assets during the economic downturn brought on by the pandemic.

Support for this cohort needs to be put in place so that they are not targeted by opportunistic businesses or relatives.

Although the COVID-19 virus can strike anyone, it will impact on the most vulnerable severely, whether that be physically or emotionally.

Please keep this in mind when you hear the phrase, ‘we are all in this together’.



Decision shows spent conviction is not a life sentence

The applicant worked as a cleaner for the respondent for a number of years before she was charged with several counts of possession of drug offences at home, in her private time, in June 2018.

In August 2018, the managing director of the respondent company received an anonymous phone call informing him that the applicant had been charged with some offences.

He then asked the applicant if this was true and she confirmed that it was.

The employer then suspended her from work until the outcome of the charges were known, and provided her with a character reference vouching for the applicant’s good character.

The applicant pleaded guilty and was given a spent conviction in relation to all the offences.

She informed the managing director of her spent convictions; however, on 14 January 2019, he advised her she would no longer be engaged by the company for her cleaning services.

A few days later she lodged a claim with the Equal Opportunity Commission alleging the company had discriminated against her in the area of work on the ground of her spent convictions.

The Commissioner informed the company about the complaint and following that notification the managing director sent text messages to the applicant, which she alleged amounted to victimisation.

The text messages said:

“Drugs have clearly affected your judgement. Please consider the references I provided to you withdrawn. I urge you to withdraw your EOC claim that adds insult to injury.

“If you do not come to your senses and withdraw your claim I will write to the Court and inform the Magistrate that I regret the reference I sent that undoubtedly saved you from imprisonment or a much heavier penalty.

“You knew from our employment contract that a criminal conviction would result in termination of employment. Please reconsider your position and stop making life difficult for your loyal past employer.”

On 4 April 2019, the applicant lodged a claim of victimisation with the Equal Opportunity Commission against the company.

The employer seemed to have placed more consideration on the applicant being convicted of the drug offences than the drug taking itself, as he did not terminate her employment until he found out the outcomes of the applicant’s charges.

He also did not have a clear understanding of spent conviction and that it was unlawful, under these circumstances, to discriminate against a person who had their conviction spent.

The State Administrative Tribunal found the respondent had discriminated against the applicant because of her spent conviction.

However, it did not accept she had been victimised by the company.

The Tribunal member stated she was not persuaded the employer intended to threaten or disadvantage the applicant with the texts, or that the texts would have caused her to feel any significant upset apart from feeling insulted and hurt.

The Tribunal went further to state she was not persuaded the applicant at any time believed the managing director had any power to withdraw his reference he had already given to the Court.

The Tribunal therefore ordered the respondent to pay $8,000 to the applicant as compensation for loss and damages.

To read the decision click here.





From the vault - Race discrimination in the provision of services

In September 2008 Mrs Violet Pickett was assisting her son, Mr Trevor Pickett, in his search for rental accommodation for his family.

Mr Pickett was a fly in fly out worker and wanted to move close to extended family, so his partner and children had support.

He asked his mother, who owned a Perth property in the suburb of Balga, if she could assist them to find a house for rent that would suit them.

The Picketts are Aboriginal.

Ms Chan owned a rental property in Balga which between 17 September and 4 October 2008 she advertised as 'Balga $350 3 x 1 hse. Secure, no pets, n/smkr, employed. Ref' and the phone number for enquiries was included in the advertisement.

On Sunday 21 September 2008, Mrs Pickett saw the advertisement and telephoned Ms Chan to make enquiries in relation to the property.

There were several telephone conversations between Mrs Pickett and Ms Chan that day in relation to the property.

Ms Chan gave Mrs Pickett the address of the property and Mrs Pickett drove past and then decided to request an inspection of the interior of the property.

Following her request Mrs Pickett said Ms Chan asked her nationality and at this point Mrs Pickett stated that she was Aboriginal.

Ms Chan then asked Mrs Pickett to call her back in 10 minutes, which Mrs Pickett did, but Ms Chan said she could not arrange for anyone to show Mrs Pickett through as Ms Chan was at work.

Ms Chan said she would call Mrs Pickett back to organise a time but instead she called back the same day to say the property was no longer available as it was on hold for another potential tenant who would most likely take up the lease.

According to Mrs Pickett she then added that she had previously had Aboriginal tenants who wrecked the place and cost her thousands of dollars to repair.

Mrs Pickett said she responded by saying Aboriginal people were not all the same, that her son worked in the mines and her husband was an artist.

She told the Tribunal that “once you disclose you are Aboriginal, things are different” and barriers start to go up.

Ms Oades was a colleague of Mrs Pickett’s at the time and Mrs Pickett discussed that she was trying to find her son and his family accommodation.

When Ms Oades asked Mrs Pickett how this was progressing, Mrs Pickett recounted her interactions with Ms Chan stating that once she disclosed that she was Aboriginal the opportunity to apply for the house was taken away from her and her son.

Ms Oades told the Tribunal this angered her, and she suggested calling Ms Chan to enquire if the property was still available.

Ms Oades stated that the woman told her that her name was Anna and she had a set of questions she was asking 'as to who [was] the best tenant'.

According to Ms Oades, Ms Chan then asked her a series of questions including whether she was employed and how old she was.

Ms Oades stated that Ms Chan told her 'I've been telling people the property is taken if I don't like the tenants'.

According to Ms Oades, Ms Chan 'went on to explain how she had an Aboriginal lady call the day before asking about the property'.

Ms Chan then told her that 'these people are not reliable and do nasty things to each other'. Ms Oades understood this to be a reference to Aboriginal people.

Ms Oades told Ms Chan that she found her comments offensive, and Ms Chan replied that 'she had a difficult court case with tenants'.  

Ms Chan denied she said this to Ms Oades, however under cross examination the Tribunal found Ms Oades to be a reliable witness.

The Tribunal found that Ms Chan had discriminated against the Picketts on the ground of race in the area of goods and services and ordered Ms Chan to pay $2,000 to Mrs Pickett and $1,000 to Mr Pickett.

To read this decision click here.



We are moving!

On 2 June the Equal Opportunity Commission will be moving to Albert Facey House.

All our telephone numbers and our post office box address will stay the same; however our new street address will be Level One, 469 Wellington Street Perth, opposite the Perth Railway Station and adjacent to Forrest Chase.

If you are visiting our office for meetings or enquiries, please ask reception on the ground floor of Albert Facey House and they will let us know so we can come down to meet you.

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