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Bullock v The Department of Corrections [2008] NZHRRT 4 (19 March 2008)

Last Updated: 27 March 2008

Decision No. 4/08

Reference No. HRRT 33/06

BETWEEN MARY JOSEPHINE BULLOCK

Plaintiff

AND THE DEPARTMENT OF CORRECTIONS

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Ms P J Davies Member
Mr E Daly Member

HEARING: 5,6 & 7 November 2007 (Wellington)

APPEARANCES:
Ms M J Bullock, plaintiff in person.
Ms M Coleman & Ms M Silverwood for defendant.

DATE OF DECISION: 19 March 2008

DECISION

Introduction

[1] This case draws attention to a tension that exists between an employer’s obligation to ensure that its employees do not suffer detriment in the workplace by reason of their sex, and the defendant’s initiatives to incorporate tikanga Maori into its events - notwithstanding that, depending on the kawa of the area, tikanga assigns different roles to participants on the basis of their sex. The only yardstick by which this Tribunal can evaluate the issues in this case is the Human Rights Act 1993 (‘the Act’).

[2] On 9 December 2004 the defendant (‘the Department’) held a poroporaki at its service centre in Tamaki, Auckland for graduands of .one of the programmes of instruction offered by the Department. According to the tikanga for the event the front row seating was for the manuhiri, and specifically for males only (including but not limited to the men who were to speak at the ceremony).

[3] At the time, the plaintiff was employed by the Department as a probation officer. Amongst the graduands were two offenders for whom she had been responsible as a probation officer. When the graduation took place the plaintiff was not afforded any opportunity to speak. She was expected to sit at the back of the audience, behind the men who were present (including other male employees of the Department, even though they did not have any management responsibility for her within the Department). The reason that she was not considered as a possible speaker, and that she was expected to sit at the back of the graduation, was that she is a woman.

[4] The plaintiff decided that she would not sit at the back. She went to the front row, sat down, and then refused to move when she was asked to do so.

[5] The plaintiff’s claim is that, contrary to the rights that are protected by Part 2 of the Act, the Department has subjected her to unlawful discrimination in the way in which it has dealt with what occurred after the graduation because of her refusal to sit where she had been expected to sit.

[6] The Department rejects all of her claims.

[7] In order to deal with the issues raised it is necessary to set out the background to the matter in some detail. Before doing that, however, we deal with a number of preliminary matters relating to the claim and the hearing.

[8] Our decision is set out under the following headings:

Preliminary matters

[9] The plaintiff’s claim was filed in October 2006. The claim included a variety of complaints about different practices that the plaintiff says are followed by the Department, including - but by no means limited to - the issues raised by what happened at the graduation and subsequent events.

[10] It was agreed at a case management conference on 19 April 2007 that the Tribunal would address the plaintiff’s allegations relating to the 9 December 2004 ceremony first, and before dealing with any of the other complaints that have been raised. The result is that, although this decision deals with issues relating to the graduation, there are still a number of complaints that have been put forward by the plaintiff and which are unresolved. The plaintiff is of course free to pursue those matters if she wishes to.

[11] In the period leading up to the Tribunal hearing, the parties made some progress towards producing a statement of facts in connection with the graduation and what took place afterwards. A statement of facts was agreed, and we have relied on it to some extent. Even so, when the case came on for hearing there was still a good deal of evidence that was called and contested. In many respects the areas of disagreement relate to the way in which certain events ought to be characterised, and reflect differing perspectives about what happened. We do not think it is necessary or productive to record every area of dispute in detail but, as will be apparent, the section of our decision which sets out the facts includes some commentary and conclusions about the evidence that we heard, in addition to those factual matters that were agreed in advance.

[12] The final preliminary note concerns the details of the claim relating to the graduation and what followed. The plaintiff is a lay person, and she appeared at the hearing without counsel. We mean no criticism of her in what follows - to the contrary, putting aside some hyperbole, the plaintiff contributed to the hearing in a proper and constructive way. Nonetheless the fact is that the way in which her claim was presented was not altogether clear. An amended claim dated 23 June 2007 identified the relevant provisions of the Act as being ss.22(1)(b) and (c) (which relate to discrimination in employment) on the grounds set out in ss.21(1)(a) (i.e., sex), (d) (ethical belief), (f) (race) and (j) (political opinion). The claim also refers to ss.65 (indirect discrimination) and 66(i), (ii) and (iv) of the Act (which relate to ‘victimisation’). These references are followed by a discursive description of the facts to be relied upon, including as we have noted references to a number of other Departmental practices. In fairness to the plaintiff, some of her references to particular provisions of the Act may have been intended to relate to claims that are not directly concerned with the graduation and what happened afterwards. Even so, there was room for some uncertainty as to exactly how the plaintiff intended to develop her case in relation to the graduation.

[13] It is understandable that in the circumstances the Department’s argument has included reference to victimisation, and the applicability of the provisions relating to indirect discrimination. In addition the Department has argued that, if the plaintiff has an arguable claim relating to the graduation, then it is a claim that ought properly to have been be brought under Part IA of the Act rather than under Part 2.

[14] We will deal with these arguments below, to the extent we consider necessary. We make it clear at the outset, however, that in our view the real questions we have to decide in respect of the graduation and what followed are those raised under ss.22(1)(c) and 21(1)(a) of the Act: has the plaintiff established that the Department subjected her to any detriment during the course of her employment, and/or that it terminated her employment, by reason of of her sex?

Background

[15] At the relevant time the plaintiff was employed by the defendant as a probation officer. Her responsibilities included managing offenders who had been sentenced to community based sentences or orders, both to ensure that the offenders complied with their conditions of sentence and also to assist rehabilitation and discourage re-offending.

[16] It may seem obvious, but it is important to state that the plaintiff owed the Department the duties of any employee to her or his employer, while the Department owed the plaintiff duties to behave as a good employer and otherwise to maintain proper standards of integrity, conduct and concern for the public interest: see s.56(3) State Sector Act 1988. Of particular relevance, the Department has a Code of Conduct (‘the Code’) which sets out what it expects of its employees, and what its employees can expect of the Department, in some detail. So, for example, as an employee the plaintiff had a duty to fulfil her obligations with professionalism and integrity, and to perform her functions in a way that respected the rights of the public, colleagues and offenders. It was also her obligation to respect the rights of others, which insofar as presently relevant is stated in the Code in the following terms:

“You are expected to treat your colleagues, offenders, and any people with whom you have official dealings with courtesy and respect. This includes respecting and being responsive to people from all cultures. You must not discriminate on the basis of the person’s sex, ... [the Code then lists the other elements of s.21(a) of the Act].

“Subjecting colleagues, offenders, stakeholders or members of the public to any of the following actions is unacceptable:

....

• Confrontational, negative or inappropriate attitudes.”
  

[17] There are other elements of the Code that might be referred to, and which are to similar effect. All in all the plaintiff was under an obligation, in the interests of her colleagues, to behave professionally and ethically in her work.

[18] At the same time, the plaintiff was entitled to expect that the Department would provide her with good working conditions, including freedom from harassment or discrimination.

[19] One topic which is the subject of particular attention in the Code is that of public comment, and contact with the media. Putting aside the possibility of media comment by union delegates, the Code provides that, in the absence of any delegated authority to do so:

“Under no circumstances should you comment publicly, to the media, or to any other organisation seeking information on policy or service delivery, on the merits of official Government policy, the policies of any political party, or the merits of any agency or government department whose work is associated with that of the Department.”

[20] However the Code recognises that there can be situations in which it is appropriate for an employee to make a public disclosure. Such a disclosure is permitted under the Code as long as the provisions of the Protected Disclosures Act 2000 are followed, and those who seek to make such a disclosure also follow the procedures set out in the Department’s Human Resources manual (which is available to staff on the Department’s intranet). The purposes of the Protected Disclosures Act are to facilitate the disclosure and investigation of matters of ‘serious wrongdoing’ in or by an organisation such as the Department, and to protect employees who make disclosures about that kind of wrongdoing. ‘Serious wrongdoing’ includes an act, omission, or course of conduct by a public official that is improperly discriminatory.

[21] The evidence and the other claims put forward by the plaintiff make it clear that by December 2004 she had developed a number of concerns about policies and practices within the Department, including (but not limited to) what she saw as a tendency to resource the management of Maori offenders in an improperly favourable way, and to follow Maori cultural protocols somewhat unthinkingly notwithstanding that, in some cases, the protocols assign different roles to participants depending on sex. Specifically, she had a firm view that where a powhiri or poroporoaki would prevent the women who attended from speaking, and where women were required to sit behind the men, then that was sexist and discriminatory. On the other hand, she accepted that before 9 December 2004 she had not ever complained about these matters in any formal way. Although there was some evidence to the effect that a different employee of the Department had raised such an issue at an earlier date without any result, there is no evidence that the plaintiff was aware of that at the time she decided to make her protest at the graduation. The Department is right to say that, before the graduation, the plaintiff had not taken her concerns up with the Department as she clearly could have done.

[22] We have more to say below about the way in which the Department’s policy in relation to Maori cultural practices has developed since 2004, but it was an important part of the Department’s case to emphasise that as at 9 December 2004 it did not have a policy of any kind regarding the holding of powhiri or poroporoaki on its premises, and in particular that there was no policy stating that women are not allowed to sit at the front on these kinds of occasions and are not allowed to speak.

[23] The graduation on 9 December 2004 was to honour eleven offenders who had successfully completed a ten-week criminogenic programme run by the Department. The offenders were of various ethnicities. Two of them had been under the plaintiff’s supervision, and it was the plaintiff who had arranged for them to attend the ceremony. Members of the public were also present, along with those who were graduating, and other staff of the Department. Altogether about 35 to 40 people were present.

[24] How a graduation ceremony such as this is run within the Department is highly variable because it depends on how the facilitators for the particular programme choose to run it. In argument Ms Coleman emphasised that it had been the graduands who had decided what kind of ceremony they wanted to have that day, and that it was they who had decided to include the poroporoaki. We accept that, but we do not accept that as a result the Department had no responsibility for what took place. In fact the documents make it clear that when the graduands were considering how to design the ceremony they were encouraged to follow Maori protocol; that had, after all, been a focus of the programme from which they were graduating. More importantly, the graduands were all offenders who were under the control of the Department, and the graduation took place on Departmental premises. There was nothing that would have prevented the Department from putting a stop to anything that it was not willing to accept. The Department facilitated the graduation. It must in our view accept responsibility for the way in which it was conducted.

[25] As was to be expected, the plaintiff was asked to the graduation. Like other probation officers who attended that day, she felt that it was important for her to be there to support the two offenders who were under her supervision. Later on, when the events of that day were being investigated, it was suggested on several occasions by various Departmental officers that the plaintiff had attended the graduation voluntarily, in the sense that she knew what was going to happen, and if she did not like it then she could (and should) have stayed away. The point was repeated in submissions for the Department at the hearing as well.

[26] Perhaps in a situation in which an employer does not have control of an event that employees might attend there comes a point at which the only solution open to the employer is to say: ‘you do not have to attend this event but if you do, then you will be expected to behave professionally, and not to complain or make a scene even if there are protocols that you do not agree with’. But in a situation such as this was, where the Department clearly had control over what took place, the point does not seem to us to have much merit.

[27] Here was a probation officer who had supervision of two graduands. She had been invited by them to attend a ceremony in her capacity as their probation officer, during working hours, and on Departmental premises. We regard it as obvious that it was within her role as a probation officer to attend, and that she was fully entitled to do so no matter what views she might privately have held about the ceremony. Insofar as the graduation included a protocol that treats men and women differently, and which raised a real issue about the possibility that unlawful discrimination was taking place under the auspices of the Department, then it is no answer for the Department to say to the plaintiff that she could and should have avoided the problem by staying away. That is in itself to risk treating the plaintiff less favourably on the grounds of her sex and/ or her beliefs.

[28] The idea that an employer can legitimately respond to a claim about detrimental treatment of employees in the workplace by reason of any of the prohibited grounds of discrimination, by telling employees that if they do not like what is happening then they should keep out of the way, is in conflict with the purposes for which the Human Rights Act was enacted, including its fundamental objectives of enhancing equality of opportunity, inclusivity in society and respect for the dignity of all human beings: see, for example, the long title to the Act and the preambles to the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on the Elimination of All Form of Racial Discrimination (1969) and the Convention on the Elimination of All Forms of Discrimination against Women (1979).

[29] In fairness to the Department, however, we should add this. Although considerable effort was made during the hearing in the Tribunal to put distance between the way in which the graduation was run, the Department’s expectations of its staff, and the reality of the Department’s ultimate responsibility for these kinds of events, the work that has subsequently been undertaken by the Department to develop a policy which responds to the human rights issues raised suggests a more realistic attitude. We have more to say on the matter below.

[30] We return to the narrative of events. The plaintiff’s evidence was that on the morning of the graduation she had been discussing the forthcoming ceremony with a (male) probation officer who had teasingly said to her something to the effect that ‘it’s a good job women have to sit at the back’. It is clear that she already knew that the forthcoming ceremony would assign roles to the attendees according to their sex, and she strongly disapproved of that. In particular, she understood that when she was at the ceremony she would not be able to speak, and that she would have to sit behind the male probation officers who were attending. Unsurprisingly, the discussion with her colleague that morning did not improve her mood. She told us that it was about then that she first began to think about sitting in the front row despite the expectations that she should not do so.

[31] When the plaintiff arrived at the venue for the graduation there was a delay in proceedings. The Departmental officers including the plaintiff were left waiting outside for a time before the proceedings began. One reason for delay was that there were not enough speakers present. Another male probation officer who was present was not chosen to speak because he did not wish to do so. The plaintiff says that she offered to speak but was ignored. Even if her offer was not heard (rather than ignored) what is clear is that, but for her sex, she would have been a possible choice of speaker. We accept the plaintiff’s evidence that she was not considered as a potential speaker that day because she is a woman.

[32] Upon entering the room in which the poroporoaki was being held the plaintiff made a decision that she would not sit at the back, as she knew she was expected to do. She sat down in the front row, along with two other male probabtion officers. One was to be a speaker, but the other was not. A young boy also came to sit in the front row (he was not a speaker either). The point, as the plaintiff observed, was that there were enough seats in the front row for her to occupy one without denying a seat to anyone who was to be speaking.

[33] One of the other probation officers present at the ceremony was Mr Christie. He had been the organiser of the graduation. A Mr King (also a probation officer) was present as well, and he was one of the speakers. Neither Mr King nor Mr Christie had any line management responsibility for the plaintiff. But both of them asked the plaintiff to move from the front row.

[34] Mr King did not give evidence, but Mr Christie did. There is some disagreement between Mr Christie and the plaintiff as to exactly what words were spoken, and what the tone of these exchanges was. The matter assumes an importance, since the plaintiff was later warned for conduct that was described as having been offensive to others, and demonstrating a lack of professionalism; and it is the Department’s case that the plaintiff was not warned just because she sat in front with the men, but because her behaviour was offensive and unprofessional.

[35] The thrust of the plaintiff’s evidence was that - putting aside the fact that she was asked to move, and had refused to do so - her behaviour was not offensive in any way. She said that after she had sat down in the front row, and was asked to move, she did no more than to say that she was making a protest and refuse to move. She felt her stance was justified. She understood that some might not like it, but she said after she had refused to move the ceremony carried on. The overall impression of her account was that it was not a particularly significant incident and that, if there was anyone who was offended, then that was not apparent at the time.

[36] In contrast witnesses for the Department said that the plaintiff refused to move loudly, and that she had said that she was making a protest against sexism at Maori ceremonies. They also said that her demeanour was aggressive and confrontational, and that it offended people who were present.

[37] In view of all the attention that has since been given the matter, we do not think it surprising that there are different perspectives about what happened, and who was offended, and whether or not the plaintiff’s behaviour was unprofessional. In the circumstances we think it important to pay particular attention to the record of events in the contemporary documents, including in particular the documents which made up the complaint that was later put forward by members of the Maori Staff Network. That complaint stated:

“ ... a serious breach of tikanga (protocol) was committed by a Probation Officer namely Josie Bullock during the welcoming of the manuhiri (visitors) process. At the commencement of this event Josie Bullock took a front row seat amongst the manuhiri. Upon doing so she was informed by one of the speakers for the manuhiri, that it was inappropriate for her to take a front row seat and that she should move further back. To this Josie responded that she was making a protest and that she had no intention of moving. This made the situation very uncomfortable, especially for the Maori staff involved. Josie was informed by the speaker for the manuhiri that this was not the right time or place to make such protests but she refused to comply with requests to change seats”.

[38] We accept this description as a reliable account of what occurred at the graduation. We also find that the plaintiff spoke in a manner that might well have been heard as loud and abrupt. Equally, beyond her refusal to move and the words that were spoken because she was asked to move, there was nothing else about the plaintiff’s conduct that day that could have supported a charge of unprofessional behaviour.

[39] The ceremony proceeded with the plaintiff sitting in the front row.

[40] As noted, the plaintiff’s decision to sit in front with the men that day was not the result of any carefully premeditated plan. It was a somewhat spontaneous reaction to the situation she found herself in and the upset that she had been caused by discussions earlier that day together with the fact that she was not considered as a speaker. But as far as she was concerned, having made her point by sitting in front with the men, that was the end of the matter (that is, presumably, until the next such ceremony). And, although she had described some feeling of humiliation at being asked to move, when asked about how she felt at the time she candidly told us:

“...I was glad I’d done it and I felt quite good about what I’d done but obviously it’s a bit nerve wracking going and doing that going against what people think and being asked to move. I mean, it does make you feel a bit nervous. Of course I wasn’t totally relaxed doing that ...’

[41] On 14 December 2004 the Maori Staff Network within the Department made a formal complaint about the plaintiff’s behaviour at the graduation to the Community Probation Service Management. The complaint is quoted in part at paragraph [37] above. The complaint added that the Maori Staff Network was:

“... extremely disturbed by this event and reminds the manager of the services’ commitment to the practices of the indigenous people of this land and the inappropriateness of this public act.”

[42] The Department decided to investigate, and the the plaintiff was informed accordingly by letter dated 5 January 2005 from the Acting Regional Manager of the Community Probation Service. The letter included reference to relevant parts of the Code.

[43] The plaintiff responded by making her own complaint. She acknowledged that she had made a protest at the graduation, but said (amongst other things):

“ ... it has been made clear to all of us participating on previous occasions that women are to sit at the back of these ceremonies. I have found it humiliating and degrading. We have been told at various times that, when speaking at these ceremonies ‘the men are like Gods and the women support them’.”

Later her complaint stated ;

“Some will try to justify this sexism by saying that women have a different role. This was the same argument used to try and stop women from getting the vote and from having equal pay.”

(The plaintiff’s complaint went on to raise issues about the use of religious practices such as prayers and other matters).

[44] At least initially it seemed as if the Department would investigate both the complaint and counter-complaint at the same time. Quite early in the process, however, the Department decided that because the complaint against the plaintiff raised disciplinary issues, and her complaint raised policy issues, the two should be dealt with separately.

[45] It is not necessary to set out the details of the interviews and correspondence that followed. It suffices to say that the Department’s investigating officer reported on 12 May 2005 with her conclusion that the plaintiff’s behaviour at the graduation had been deliberate, that it was intended to cause offence, and had been unprofessional. The plaintiff was given a copy of the report at a meeting on 16 May 2005 together with two separate letters. The first letter expressed the Department’s preliminary view that the plaintiff’s actions at the graduation constitued misconduct, for which she should receive an oral warning. The second letter stated that disciplinary investigation was concluded, and that “Your complaint will now be addressed.” The second letter also explained that the issues raised by the plaintiff’s complaint were not specific to the Community Probation Service and would require a response at the Departmental level. The plaintiff was told that the Department’s Policy Development Group would consider the Departmental protocols around powhiri and poroporoaki.

[46] Some further correspondence and meetings followed. We need only note that by 25 May 2005 it had become clear to the Department’s Regional Manager that the plaintiff was at least thinking about ‘going public’ with her concerns. As a result the Regional Manager told the plaintiff on 25 May 2005 that if she (the plaintiff) wanted to, then she could make a protected disclosure under the Protected Disclosures Act 2000. The Regional Manager even referred the plaintiff to the Department’s intranet, where the relevant procedures were set out.

[47] On 29 June 2005 the plaintiff was issued with the anticipated oral warning. The oral warning was recorded in a letter (which for some reason was dated 14 June 2005, although it is common ground that it was given to the plaintiff on 29 June 2005). It was to remain on the plaintiff’s file with the Department for 12 months. The letter contained the following passage:

“This oral warning means that in future, you are required to refrain from conduct that may offend other people, including your colleagues and members of the public. You are expected to refrain from displaying confrontational, negative or inappropriate attitudes. If, during the next 12 months, you fail to do so, or if you otherwise commit misconduct in breach of the Code of Conduct, you could receive a written warning. If you commit serious misconduct you could face summary dismissal. . . .”

[48] The Regional Manager who gave the warning to the plaintiff at the meeting on 29 June 2005 gave evidence that, as they were leaving the meeting, the plaintiff asked whether she was now able to talk to the media. The Regional Manager’s evidence was that she told the plaintiff she could not do so. The plaintiff did not appear to be happy about that, and asked whether the Department was going to issue a media release. The Regional Manager informed her that the Department would not make media releases about individual employment situations. She repeated that the plaintiff did not have the Department’s authority to talk to the media about the issues. The plaintiff accepts that at the time she received the oral warning she was aware of the Department’s media policy, i.e., that Departmental employees needed to have both authorisation, and an approved media delegation, to speak to the media.

[49] The plaintiff had neither, but she viewed these media rules as a way of stopping people like her from talking about Department policy when, in her view, the public had a right to know what the Department was doing. That night she appeared on the ‘Campbell Live Show’ on TV3. The next morning she was interviewed on National Radio’s ‘Morning Report’ Programme, and also by ‘Radio Live’. A number of other broadcasts and media interviews followed.

[50] Despite what she had been told by the Regional Manager, the plaintiff chose to ignore (or, at least, she completely overlooked) the possibility of pursuing her concerns as a protected disclosure under the Protected Disclosures Act 2000. We do not think it too harsh to say that in our assessment she anticipated the process of taking her concerns into the public arena with some enthusiasm, and she had no hesitation at all about embarrassing the Department with what she had to say.

[51] Unsurprisingly, a second investigation into the plaintiff’s conduct was initiated. This time the issue was whether she had breached the Department’s media policy, and the investigation concerned alleged serious misconduct (rather than just misconduct as had been the case in January 2005). However the plaintiff was unrepentant, and she continued to talk to the media notwithstanding several warnings from the Department about her behaviour.

[52] Again, we do not see any need to set out the detail of the steps that were taken in the investigation. The plaintiff was suspended from service on 26 July 2005, and then she was dismissed on 19 October 2005. The letter from the Regional Manager which records the dismissal sets out the Department’s concerns and concludes:

“You have been openly and publicly critical of the policies you are employed to perform. Your continued public comment is in breach of the Department’s Code of Conduct and my instructions not to speak to the media. You have also indicated that you are prepared to comment publicly again. Your actions have been deliberate and repeated. As a consequence of your conduct I no longer have trust and confidence in you as an employee of the Department.”

[53] The letter also said that the Department would continue to address the complaint that had been made by the plaintiff. In fact work on the issues raised by the plaintiff’s complaint had continued throughout the second misconduct investigation. Notwithstanding the fact that the plaintiff had been dismissed in October 2005, she was advised of the Department’s new policy when it was ‘rolled out’ in December 2005, and she was given a copy of the policy and associated guidelines in January 2006. That led to some further correspondence with the Chief Executive of the Department, the details of which are, again, unimportant.

[54] Against that background the plaintiff claims:

“1. A declaration that the Department of Corrections has breached Part 2 of the Human Rights Act and an order restraining it from continuing in such breaches.

2. An order that the Department of Corrections ensure that all its policies are secular, non-sexist and non-racist.
   
3. I am entitled to compensation for humiliation and loss of earnings. [The plaintiff asked for two years’ loss of earnings at $98,344; damages for humiliation in a sum of $10,000; and a further $8,000 to reflect the fact that she was ‘held back’ from promotion because the oral warning was on her file - i.e. a total of $116,344.00].
   
4. The Tribunal should also conduct an investigation of the department’s general promotion of Maori culture and its discriminatory treatment of offenders and staff on the basis of race.”
   

[55] Items 2 and 4 will be dealt with in the context of the many other issues that the plaintiff has raised in the Tribunal but which, by agreement, are to be left until the issues relating to the graduation have been determined. As a claim, item 3 is straightforward enough to understand, although to avoid confusion we should say that we take all the claims for damages to be related to the issues surrounding the graduation (i.e., we do not understand the plaintiff to be claiming damages arising out out any of her other complaints against the Department, at least not at this stage).

[56] The claim for a declaration is imprecise in that it does not identify exactly what conduct is said to have breached Part 2 of the Act. In context, and having regard to the evidence that we heard, however, we take the application to be related to each of (a) the oral warning received by the plaintif and (b) the fact she was dismissed. We will deal with those two topics below, but before doing so it is convenient to say something more about the Department’s response to the complaint that had been made by the plaintiff in January 2005.

Development of Departmental policy

[57] Strictly speaking, the details of the policy development work that the Department was prompted to do as a consequence of the plaintiff’s counter-complaint are of marginal relevance to the issues we have to decide. On the other hand, and as already noted, the fact that this work was done undermines arguments that were presented to us at the hearing, to the effect that there was no less favourable treatment of the plaintiff on the grounds of her sex at the graduation (or if there was, then it was not something for which the Department should be held accountable). As importantly, we think the Department ought to be given credit for having now confronted the sensitive and at times difficult issues that are raised. We think it would be unfair not to include a brief summary of the problem as seen from the perspective of the Department’s Policy Development Team, and to say something about the steps the Department has taken to deal with the matter. Furthermore, as will be explained, the work that has been done (and which was still on-going at the date of the hearing) does seem to us to have a bearing on the question of remedy in this case.

[58] Ms von Dadelszen is the Department’s General Manager for Policy Strategy and Research. She told us that as early as February 2005 the plaintiff’s complaint was discussed by the General Management team in the Department, and that as a result the Policy Development team was asked to investigate the need for the Department to have a policy on the use of Maori cultural practices as a whole. The task was ultimately delegated to the Maori Pacific Policy Development Team (‘the MPP Team’).

[59] The first step in the process was to contact other government agencies about their protocols for use of Maori ceremonies, starting with the State Services Commission and Te Puni Kokiri. Later the MPP Team contacted other government departments as well. The response was limited. It established that most Government agencies had no policies or protocols and, of those that did, policies tended to focus on particular ceremonies used in specific circumstances and areas.

[60] Ms von Dadelszen described various other difficulties that the MMP Team were faced with, ranging from a general questioning of Government initiatives targeted to Maori, to practical issues of staff turnover within the MPP Team. Even so, by July 2005 the MPP Team was in a position to collate such results as had emerged from its researches and consultations, and start towards formulating draft policy.

[61] We have no hesitation in accepting, as Ms von Dadelszen said, that this was (and no doubt still is) a complex issue. The Department comes to the problem in a practical context in which Maori make up approximately 50% of the offender population, and are shown by research to be statistically more likely than any other group to re-offend. The Department is commited to addressing issues of Maori offending, and does so in part through targeted programmes for Maori including the incorporation of Maori cultural elements and processes into programmes that are then available to all offenders. The MPP Team needed to take account of the Department’s strategies to reduce Maori re-offending and, in particular, the Maori Strategic Plan which identifies the importance of building partnerships with Maori, and being responsive to Maori expectations, as key themes.

[62] The work is also set in the context of the Corrections Act 2004, which identifies various principles to guide the corrections system including the importance of taking into account the cultural background, ethnic identity and language of offenders in order to reduce re-offending and in developing rehabilitative programmes. Section 80 of the Corrections Act, for example, requires the Chief Executive of the Department to ensure that in every Corrections prison, as far as is reasonable and practical, appropriate provision is made for the various needs of prisoners which arise from the fact that they belong to particular cultures. No doubt the obligations of the Chief Executive towards the employees of the Department under the State Sector Act 1988 are also relevant: see s.56 of that Act (including but not limited to s.56(2)(d)).

[63] The MPP team was also aware that, to be of value to the Department in achieving its objectives, any policy regarding Maori cultural practices had to ensure that where particular practices were followed then they ought to be authentic and respectful of tangata whenua. The Department relies on its relationships with Maori for the efficacy of its programmes, and it works in partnership with iwi around the country to provide corrections services that reduce re-offending. It is also of considerable importance to the Department to be able to recruit and retain Maori staff.

[64] Against all of that, the MPP Team recognised the importance to the Department and its staff of protecting equal opportunities, and that in some cases that obligation appeared to conflict with tikanga Maori. The example Ms von Dadelszen gave was of a powhiri being conducted to welcome a new staff member in a situation where the expectations were such that a senior female manager would not be able to take a leadership role, because there would not be an opportunity for her to speak and welcome her employee.

[65] In something of an understatement, Ms von Dadelszen said that trying to work out how to accommodate two fundamental but conflicting New Zealand values was a challenging and time consuming process.

[66] In fact, even at the time of the hearing in the Tribunal the policy development was still something of a work in progress. Ms von Dadelszen explained that a policy had been prepared and ‘rolled out’ in December 2005 (and we agree with her that, in the circumstances, that was timely). The ‘executive summary’ of that policy described the issue in these terms:

“The Department frequently applies powhiri and other Maori cultural practices during Departmental events. The practices have been incorporated to provide a more effective service for Maori offenders in order to reduce re-offending by Maori. No guidance currently exists to regulate these events. This policy responds to issues that have arisen in current practice:

• Tikanga Maori has been misued by the Department during Maori cultural practices, particularly powhiri. This has meant that the integrity of tikanga Maori has not been protected by the Department.
  
• Women are sometimes given different roles to men during Department events that are governed by practices modelled on tikanga Maori. Women have been excluded from leading an event, having a speaking role or being able to participate as their male colleagues can.”
  

[67] It is neither necessary nor appropriate to set out the details of the policy here, but a significant feature of the response to these issues was a recommendation that Department events should in future adhere to the principles that women and men should have the same roles; and that tikanga Maori should be correctly applied on the Department’s premises. To that end it was also recommended that a process called ‘whakatau’ should be standard practice in welcoming ceremonies. Powhiri which assign gender-based roles to the participants could still be conducted, but only in exceptional circumstances and even then only after the approval of the Chief Executive and the Treaty Relationships Manager of the Department had been obtained.

[68] At the hearing, however, Ms von Dadelszen told us that this new policy had not found universal approval, and that it had even caused offence in some quarters, particularly in that the ‘whakatau’ process was not universally accepted as an appropriate replacement for traditional powhiri/ poroporoaki ceremonies. As a result the policy has been further developed, and a new statement has applied since mid-November 2007. The whakatau process is no longer referred to, but the underlying issues (as set out at para [66] above) are repeated, albeit in slightly different terms. The policy now records that a Departmental welcome, without involvement of tangata whenua, will suit a large number of occasions, although on those occasions managers are still encouraged to use some te reo Maori to endorse the importance of Maori culture within the Department. Where a powhiri is used as a staff welcome it is to be led by tangata whenua undertaking the roles of caller and speaker. The policy has some directions for the different considerations that apply depending on whether the ceremony is to be held on Departmental premises or elsewhere. There is also a fairly long list of conditions that apply in the case of a powhiri being used as a staff welcome.

[69] It is perhaps worth noting that both the December 2005 policy and the mid-November 2007 policy make it clear that, if the graduation ceremony of 9 Decmeber 2004 had taken place at any time after December 2005, it would not have involved a poroporoaki. The plaintiff would not have been put in the position of being unable to speak. She would not have been expected to sit behind the men.

[70] It is not for us to evaluate these policies for compliance with the Human Rights Act, at least not in the context of this case. But at least three things seem to us to emerge from what has happened:

• [a] First, if the Department had left dealing with the complaint that was made against the plaintiff by the Maori Staff Network until the outcome of the policy debate that was stimulated by the plaintiff’s counter-complaint was known, then the Department’s evaluation of her conduct would have been informed by the fact that, if the graduation had happened after December 2005, the plaintiff would not have been placed in the position that she found herself in in December 2004. Of course we do not know whether or not it would have made a difference, but it might have. To that extent we are inclined to sympathise with the sense of injustice that emerges from the plaintiff’s evidence about how she was treated by the Department;
  
• [b] Secondly, although it is clear that there has been some considerable tension in the relationship between the Department and the plaintiff, the reality is that the plaintiff’s complaint has led to significant policy development in a difficult but important area of the Department’s activities. But for the plaintiff’s complaint and all that followed, the issues might still be unattended;
  
• [c] Thirdly, we consider that the Department has taken the issues of policy and practice that were raised by the plaintiff’s complaint seriously, and it has responded in a diligent way. This conclusion is relevant to our assessment of the remedies that might be appropriate (see paragraph [92] below).
  

Legal considerations

[71] In this section of the decision we consider relevant legal matters.

[72] As we have noted at para [13] above, it seems to us that the essential question is whether these events establish that the Department subjected the plaintiff to any detriment during the course of her employment, and/or that it terminated her employment, by reason of of her sex. The provisions of the Act that are most obviously engaged are ss.22(1)(c) and 21(1)(a) which, insofar as relevant, provide:

“22. Employment – (1) Where an ... employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer, -

...

(c) To terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; ...

by reason of any of the prohibited grounds of discrimination.”

“21. Prohibited grounds of discrimination – (1) For the purposes of this Act, the prohibited grounds of discrimination are –

(a) Sex, ...”

[73] In view of the conclusions we have reached, we do not altogether exclude a possibility that the claim might have been formulated as under s.22(1)(b) of the Act as well. It might, for example, just be possible to put an argument for the plaintiff on the basis that the Department’s expectations (namely that, if she attended the graduation, then she would not be a speaker and she would not sit in front with the men) amounted to less favourable terms of employment, or opportunities, than the Department afforded to male employees of substantially similar capabilities and who were employed on work of the same description in substantially similar circumstances as the plaintiff. But our sense is that the facts of this case relate more directly to the provisions of s.22(1)(c) of the Act, which concern comparative detriment in employment by reason of any one of the prohibited grounds of discrimination. It is also our view that it is sufficient to deal with the case on the basis of s.22(1)(c) only since, even if s.22(1)(b) applies as well as s.22(1)(c), we do not think there would be any material difference in the outcome. As a result we do not find it necessary to decide any independent issues potentially raised under s.22(1)(b).

[74] As noted, the plaintiff’s claim referred to a number of the prohibited grounds of discrimination apart from sex. Again, it may be that in some respects those parts of the claim were intended to relate to other issues raised by the plaintiff, and which are not directly concerned with the graduation. We think it is enough to say that the overwhelming focus of the evidence and argument we heard concerned the possibility of unlawful conduct on the grounds of the plaintiff’s sex. We do not therefore consider it to be necessary to deal with any independent issues of discrimination on the grounds of ethical belief, race and/or political opinion in relation to what happened at, and as a result of, the graduation (beyond saying again that, even if those issues were fully analysed, we do not think the end result would be materially different).

[75] The plaintiff’s claim referred to s.66 of the Act, which deals with ‘victimisation’. But we agree with Ms Coleman that the facts of this case do not give rise to any such conclusion: there is no evidence to suggest that the Department’s treatment of the plaintiff at any point was by way of response to the plaintiff’s intended or actual resort to the rights that are protected by s.66. The plaintiff was investigated and warned because she had refused to sit at the back of the graduation. She was later investigated again, suspended and then dismissed because she had made her issues public in a way that was contrary to the Code and the Department’s expectations of her as an employee. On her own evidence, the first time that she made or appears to have even seriously considered making a complaint to the Human Rights Commission under the Act was after she had been suspended, and indeed after she had been told of the Department’s preliminary view that she ought to be dismissed. This is not a s.66 case.

[76] There is a potential issue as to whether we ought to approach this as a claim for indirect discrimination under s.65 of the Act. As Ms Coleman emphasised at several points, at the time when the graduation took place in December 2004 the Department did not have any policy regarding the holding of powhiri or poroporoaki on its premises. In partricular there was no policy that prevented women from speaking or sitting in the front row when such ceremonies were held. On that basis Ms Coleman submitted that at best the plaintiff’s claim might be seen as a claim that other Departmental policies in force at the time, and which reflected the Department’s commitment to reducing Maori offending and embracing Maori culture, had an indirect effect of discriminating against her (the plaintiff).

[77] The difficulty with this part of the argument, however, is that it assumes that the Department only impacts its employees through policy. We do not accept that premise. In the end, this is a case about the relationship between the Department as an employer and the plaintiff as an employee. The plaintiff asserts that she was subjected to detrimental treatment by the Department by reason of her sex. The fact that the Department had no relevant policy at the time is no answer to that complaint.

[78] Another aspect of the argument about direct/ indirect discrimination was that the plaintiff has not asserted that the Department had vicarious responsibility for the actions of either of the two male probation officers who asked her to move from the front row on the day of the graduation. In fairness, the defendant accepts it cannot escape any responsibility that there may be for the warning that was later given, since it can hardly be denied that the warning was given by the Department. We will consider the events of the graduation in more detail below, but we make it clear that we do not accept this ‘no vicarious responsibility’ argument either. When the events of the graduation were drawn to the attention of the Department it investigated and then warned the plaintiff. It cannot escape the conclusion that ultimately it condoned what the two male probation officers (both employees of the Department) had done in asking the plaintiff (also an employee of the Department) to move. We do not think that arguments about whether or not it had ‘vicarious liability’ in the circumstances make any real difference in this case.

[79] There was also a different argument by the Department to the effect that, since the claim relates to the Department’s policies (or the absence thereof, as at the time of the graduation), this is in reality a case that comes under Part 1A of the Act rather than Part 2. If that were accepted, then it would be potentially significant not least because the analysis of events would likely include an assessment as to whether the Department’s policies (or the absence thereof) might, even if discriminatory, nonetheless fall within a reasonable limit on the right to freedom from discrimination as is demonstrably justified in a free and democratic society (see Part 1A of the Act, and s.5 of the New Zealand Bill of Rights Act 1990). Again, however, we disagree. This is a claim by a (former) employee about the way in which her (former) employer has treated her in respect of a specific incident that ocurred during her employment. We think it was properly brought under Part 2 of the Act. The fact that the Department happens to be a Government agency that exercises public functions does not in our view alter that conclusion in this case. If it were otherwise, then potentially many claims by employees of government agencies that would have come under the Act as it stood before the introduction of Part 1A might now have to be treated as Part 1A matters. We do not believe that was the intention behind the reforms contained in the Human Rights Amendment Act 2001.

[80] We add this observation as well. We accept that the boundaries between what should be treated as falling under Part 1A and what should be dealt with under Part 2 of the Act may not always be clear: see, for example, the discussion in Morrison v Housing New Zealand [2005] NZHRRT 45. But the fact that different evidential considerations can be raised depending on which Part is to be referred to makes it all the more important that any issue about whether Part 1A or Part 2 is to be applied should be resolved or determined before the substantive hearing takes place. In fact that is a process that has already been started in respect of the other claims that the plaintiff has put forward. In our view it was rather too late for the Department to have raised this issue in a focussed way for the first time at the substantive hearing in respect of the graduation.

[81] For these reasons we are satisfied that this case can and should be dealt with as a straightforward claim about direct discrimination under ss.22 (1) and 21(1) of the Act.

[82] Even approaching the case on that basis, Ms Coleman submitted that in any event there was no sufficient element of ‘detriment’ in the way in which the plaintiff was treated to bring the case within s.22(1). It was her argument that, although ‘detriment’ is not defined in the Act, a proper interpretation establishes that the Legislature must have intended there to be a threshold, below which adverse effects should be seen as ‘de minimus’ or not being sufficient to establish ‘detriment’. Ms Coleman referred to various aspects of the legislation, and suggested policy considerations, which in her submission justify the conclusion that the idea of detriment in s.22 has to reach a certain level of ‘seriousness’ before it gives rise to liability under the Act. Ms Coleman referred to Marjowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34; [2007] 1 AC 224 (although she did accept that the context was ‘slightly’ different to the present case). In Marjowski, Lord Nicholls said

“Where ... the quality of conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of conduct must be of an order which would sustain criminal liability under section 2 [of the Protection from Harassment Act 1997(UK)].”

[83] We have significant reservations about Ms Coleman’s argument, because it seems to us to involve a suggestion that the natural and ordinary meaning of the word ‘detriment’ as it appears in s.22 of the Act should be read down in favour of a more restricted meaning which encompasses only that which is ‘sufficiently serious’ detriment or ‘real’ detriment (whatever those adjectives might add). To do so strains against all of the authorities which emphasise that the Act is to be given a broad and liberal interpretation, consistent with its role in the protection of fundamental human rights: see, for example, King-Ansell v Police [1979] 2 NZLR 531; Coburn v Human Rights Comission [1994] 3 NZLR 323, Quilter v Attorney-General [1997] NZCA 207; (1997) 4 HRNZ 170 and Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc [2002] NZCA 88; (2002) 6 HRNZ 713; to list just a few examples.

[84] Even assuming that Ms Coleman’s argument were to be upheld, however, we are not persuaded that the kind of detriment at issue in this case is of such an insignificant nature as to warrant being ignored (in view of what follows, we make it clear that we see the question of what humiliation, loss of dignity and/or injury to feelings have been suffered as a consequence of detrimental treatment as being distinct from the question of the existence or otherwise of detrimental treatment). We do not think that it can sensibly be suggested that an expectation that women will sit behind men, and that women cannot participate by way of a speaking role in a ceremony, does not give rise to detriment of a kind that falls within s.22(1) of the Act.

[85] Finally, we were referred by Ms Coleman to a number of authorities on the issue of comparative treatment of men and women in the workplace. We do not refer to all of them because we think the outcome in this case ultimately depends on a reasonably straightforward application of the relevant statutory provisions. In view of the submissions that were presented, however, we will say that we have not found the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 to be comparable with the present case. In Shamoon a Police Chief Inspector argued that she had been treated differently from her male colleagues of the same rank because she was not permitted to conduct staff performance appraisals while her male colleagues were. The task of carrying out the appraisals had been taken from her following complaints about the way in which she had carried them out. There had been no such complaints about the way the appraisals were carried out by her male colleagues. It was held that the reason for the different treatment of the plaintiff and her male colleagues was to do with the complaints, not the plaintiff’s sex.

The graduation

[86] We turn to consider the legal consequences of the events that have given rise to this claim. We do so in three stages, starting with the situation as it stood on the day of the graduation on 9 December 2004.

[87] We have already found that the Department ultimately had control over what occurred at the graduation and that, in this case at least, it is no answer for the Department to say that if the plaintiff did not agree with what was to happen then she should have stayed away. Given that the plaintiff was later warned for her refusal to sit at the back, the Department cannot be heard to say that it had no expectations of her. The reality is that when the plaintiff arrived at the ceremony the Department expected that she would submit to the protocol for the event; in particular that she would not be a speaker, and that she would not sit in front with the men even though they had no seniority over her in terms of management responsibility within the Department. A substantial and operative reason for those expectations (if not the only real reason) was that the plaintiff is a woman.

[88] During the hearing we understood counsel for the Department to have suggested that there was nothing detrimental about being required to sit at the back of a ceremony like this (we have dealt with the issue as to whether there is a de minmus threshold above. In this part of the argument we took Ms Coleman to be saying that it is not just a case of no ‘real’ detriment, but that there was no detriment of any kind at all).

[89] As a result an analogy was suggested to counsel to respond to: what would the position be if the Department had organsied a social event involving a night at the theatre for employees? No-one would be required to attend, but the expectation if they did would be that the women must sit behind the men. Ms Coleman suggested that the issue of detriment would then depend on what views the seats offered, and things of that kind. Again she firmly resisted any suggestion that such an arrangement is inherently detrimental. We do not accept that. We regard it as obvious that a rule or expectation that women cannot speak at a function, and that women have a more limited right than men to choose where they will sit, involves a detriment - at least including the fact that, in that situation, women have fewer choices and opportunities than men do.

[90] To put our conclusion in the language of the Act, we are satisfied that the Department’s expectations of the plaintiff when she attended the graduation (specifically, in that it expected she would not be a speaker, and it expected her to sit behind the men) amounted to detrimental treatment by reason of her sex: male employees employed on work of the same description as the plaintiff were not subjected to the same limiting expectations.

[91] The more difficult question under this heading is as to what remedy is appropriate. In part that is because the indications given by the plaintiff in her claim suggest that her real concern was for the Tribunal to address the question at the time of the warning she was given, and then at the point of her dismissal. There is no explicit request for a finding or declaration in relation to the situation as it stood at the time of the graduation. By the same token, the plaintiff’s claim for damages includes a claim for $10,000 for the humiliation she says suffered. The claim rather suggests to us that it is intended to include not only the graduation, but also all of the subsequent events leading up to and including her dismissal. Even on that basis however, we think that at least to some extent we are being asked to attribute damages for humiliation to the time of the graduation.

[92] The Tribunal’s powers to award remedies in a case of this kind are set out in s92I(3) of the Act. These include a power to formally declare that there has been a breach of the Act: see s.92I(3)(a). Our conclusion at paragraph [90] would support the making of a declaration in appropriate terms, and we do not think the fact that the plaintiff (who is a lay litigant) has not specifically asked for a declaration of that kind is a sufficient reason not to make a declaration. On the other hand, the power to grant a declaration is always a matter of discretion, and that fact that the plaintiff did not specifically ask for a declaration is a factor that ought to be taken into account. More importantly, for the reasons we have set out at paragraphs [57] to [70] above, we have found that – notwithstanding some of the points that were advanced for the Department at the hearing - in fact the Department has taken the plaintiff’s complaint seriously and it has responded in a diligent way.

[93] In the circumstances we do not think that there is much to be gained now by formalising our conclusion about the graduation ceremony by way of a declaration. We do not propose to make one.

[94] The Tribunal’s powers to award damages are set out in s.92I(3)(c) and ss.92M to 92O of the Act. Of relevance here is s.92M(1)(c), which contemplates damages to compensate for humiliation, loss of dignity and injury to the feelings of the complainant or aggrieved person.

[95] The idea that money can compensate for these kinds of injury is not without its complexities. One of these concerns the assessment of quantum, as noted (in the context of the Tribunal’s jurisdiction under the Health and Disability Commissioner Act 1994) in Director of Proceedings under the Health and Disability Commissioner Act v Mogridge [2007] NZHRRT 27 at para’s [107] to [110]. It is clear that the exercise is not hypothetical. Nor is it one that asks us to proceed on the basis of what we think a person in the plaintiff’s position might reasonably have been expected to suffer in the circumstances (although that can perhaps be a factor if there is an issue of credibility). The assessment of damages for humiliation, loss of dignity and/or injury to feelings depends on the evidence in the particular case both as to the fact, and the extent, of the harm actually suffered by the plaintiff.

[96] We have already noted the evidence that the plaintiff gave us on this aspect of the case (see para [40] above). The plaintiff refused to move when asked, and then felt she had made her point. Emotional upset was balanced by a sense of vindication. As she told us, if there had been no complaint against her then as far as she was concerned that would have been an end of the matter.

[97] We cannot find any sufficient evidence that the plaintiff suffered such a sense of humiliation, loss of dignity or injury to feelings on 9 December 2004 as to justify an award of damages on that account.

[98] For these reasons, and despite our conclusion that the plaintiff did suffer detriment at the graduation because of her sex, we are not willing to award a monetary remedy on that account.

The warning

[99] The second stage of our analysis is to consider the events leading up to and including the warning that the plaintiff received in June 2005. We have found this to be by far the most difficult aspect of this case.

[100] Putting aside the question of whether there had been any breach of the Act at the graduation, the Department argues that in any event the reason that the plaintiff was warned about her behaviour had nothing to do with the fact that she was a woman, but was because she had behaved unprofessionally and in a way that fell below the standards set by the the Department’s Code. The Department says that if a male employee were to behave unprofessionally at such an occasion then he too would receive such a warning.

[101] We agree with the Department that the way in which the plaintiff chose to make her protest at the graduation was unprofessional in the circumstances.

[102] There is no evidence that the plaintiff had taken her concerns about these ceremonies up with the Department in anything like a formal way before the graduation. There was some evidence at the hearing about an earlier complaint by a different employee of the Department which had not produced any result, but there is no evidence that the plaintiff was aware of that at the time of the graduation. We do not think the plaintiff can place much weight on that episode in trying to establish that the Department would have ignored her if she had raised the matter. In any event, the plaintiff could have engaged with the Human Rights Commission on the issue. One of the Department’s witnesses told us (and we accept) that if the plaintiff had done that there there would have been no adverse consequences for her in her employment. And, if all else had failed, the matter could have been pursued as for a protected disclosure under the Protected Disclosures Act 2000.

[103] Perhaps in another situation where complaints have been ignored or rejected there might come a point at which the only realistic way for an employee to proceed would be to protest as the plaintiff did, but we agree with the Department that this case falls a long way short of that mark. The plaintiff had several other avenues by which she could have pursued the matter, and which she did not follow.

[104] Furthermore, as the plaintiff told us, her decision to sit at the front and refuse to move, was a spur of the moment thing. She understood that her conduct would surprise and might even offend others who were present at the ceremony, including her colleagues on the Maori Staff Network who later complained. Her refusal to move no doubt had the effect of drawing attention to her, and the issues she wanted to raise, to the detriment of the ceremony which was to honour the graduands.

[105] The plaintiff was an employee of the Department, and the Department was entitled to expect her to behave professionally and not to undermine the graduation for her own ends. We agree with the Department’s submission that the fact that she may have had rights under the Act did not immunise her from the consequences of anything and everything she did in purporting to assert those rights. In particular we do not agree with the rather self-congratulatory evidence that the plaintiff gave at the hearing in comparing her protest with that of Rosa Parks, the celebrated civil rights activist in the United States.

[106] For these reasons we have considerable sympathy for the Department’s decision that the plaintiff had behaved unprofessionally at the graduation, and that a warning was justified. We go so far as to say that throughout these events the plaintiff has allowed her enthusiasm for the points she wished to make to displace any sense of professionalism, and to marginalise the reality that throughout she was an employee of the Department so that, in common with all other employees, she had obligations as well as rights. (For discussion of the same idea but in a much wider context, see Brooker v Police [2007] 3 NZLR 41, and in particular the observations of Thomas J at paragraphs [107] to [176]).

[107] Having said that, in the end our task is to measure the investigation and subsequent warning against the provisions of the Act. And, despite the Department’s attempts to place emphasis on objectionable aspects of the plaintiff’s behaviour at the graduation (such as that her conduct was deliberate, that she knew she would cause offence, that she was loud, and so on) in the end the only conduct that was really objectionable was the fact that the plaintiff sat in the front and refused to move. That was what Mr Christie and the Maori Staff Network complained about. But for that, it is difficult to see that there would have been a complaint, much less an investigation or a warning.

[108] We do not doubt that that if a male probation officer at the graduation had behaved unprofessionally then he would have been the subject of investigation and warning, just as the plaintiff was. But the more important conclusion is that a male probation officer would not have been exposed to a finding of unprofessional conduct simply by sitting in the front row of the ceremony. It seems to us to be inescapable that the ‘offence’ for which the plaintiff was warned was not something that a male employee of the Department was ever even at risk of. The Department had a different expectation about how women employees would behave at such a ceremony, because of their sex. And therein lies the detriment that the plaintiff suffered at and after the graduation.

[109] Unlike the analysis of the situation as at the time of the graduation, the plaintiff’s claim did make it reasonably clear that she would be asking us to formally evaluate the warning for compliance with the Act: amongst other things, she has asserted that “By upholding a complaint against me for sitting in the front row and giving me an oral warning for that, the Department of Corrections displayed blatant sexism”. And, again in contrast with the analysis of the situation at the time of the graduation, the Department’s subsequent initiatives do not demonstrate any willingness to entertain a different view about the warning that was issued. As we have said, we have sympathy for the Department’s argument that the plaintiff’s conduct was unprofessional. Nonetheless we have concluded that the investigation and warning were in essence based on an unlawful expectation that the Department had held at the time of the graduation.

[110] In our assessment the plaintiff is entitled to a formal declaration to record the outcome. Pursuant to s.92I(3)(a) of the Act we therefore declare that the plaintiff was subjected by the Department to detriment (in the form of an investigation and warning) in circumstances in which male employees of the Department who were employed on work of the same description would not have been subjected to the same detriment (because there was no expectation that they would sit at the back of the graduation), and that the reason for the difference of treatment was the plaintiff’s sex.

[111] The next question concerns the assessment of damages. Again there is the general claim for $10,000 on account of humiliation, loss of dignity and injury to feelings. In addition the plaintiff asks us to award a further $8,000 because she was “ ... held back from being promoted.” Her argument is that she was unlikely to be promoted while the oral warning was on her record, and we think it best treated as a kind of ‘lost opportunity’ claim under ss.92I(3) and 92M(1)(b) of the Act.

[112] We deal with the claim in relation to the lost opportunity for promotion first. The difficulty is that there is no evidence that there were any promotion opportunities that the plaintiff might have put herself forward for, or otherwise have been considered for, at the relevant time. In fact it is clear that during the time that the warning was on the plaintiff’s file and before she was dismissed she repeatedly talked to the media about her issues, in breach of the obligations under the Code and despite repeated instructions not to do so. We suspect that would have made her an unlikely candidate for promotion in any event, but even putting that to one side there is insufficient evidence that there was any real opportunity that was lost and for which compensation might be appropriate. This aspect of the claim is dismissed.

[113] The question of damages for emotional harm arising out of the investigation and warning is more difficult but, again, we have come to the conclusion that there is insufficient evidence to establish that the plaintiff did indeed feel humiliation, loss of dignity or injury to feelings sufficient to warrant an award of damages. The plaintiff was clearly able to put her points of view in a robust way. Indeed when she was asked about the warning in an interview shortly after she had been given it, the plaintiff described it as a ‘slap on the hand with a wet bus ticket’. That description was raised with the plaintiff at the hearing:

“Q: ... the warning which I think you described to one of the radio interviews as a slap on the wrist with a wet bus ticket.

A: Umm. Well it was in a way.

Q: Well I was going to ask you is that still the way you’d see it or?

A: Well I suppose I was trying to say stuff them, that’s nothing to me, I was trying to have that attitude, but obviously it isn’t good to have that on your record and there’s no way that they were going to promote me having had that on my record even though they said it lasted only 12 months.

Q: This is why I want to ask you, because we see these documents [comments] in the paper[s] and its important that we have your words today on what, what you’d have to say. So that’s as I say , that’s at the point that you get your warning ...

A: Well I felt there shouldn’t have been anything, obviously. I should, you know, have been totally forgotten about and I should have actually been apologised to, but you know, so to get anything was bad, but obviously it wasn’t, I mean I was’t fired at that stage or anything so it was fairly minor in some respects but it certainly does nothing for one’s career because there’s no way after that I would ever get promoted and yeah I felt it was a put down of me to give me any sort of punishment [or] discipline whatsoever, it was a total put down of me and my right to sit at the front.”

[114] We do not consider that the evidence of emotional harm arising out of the process of investigation and warning justifies an award of compensatory damages. This aspect of the plaintiff’s claim is also dismissed.

The dismissal

[115] The highest that the plaintiff can put her case in respect of her dismissal is to say that, after she received the warning, she was in the position of an employee who had been wrongly treated by her employer. But she was still an employee, and nothing that had happened to that point had the effect of excusing her from her obligations as an employee. Even if it is accepted that she ought not to have been given the warning, the restrictions on making public comment that are set out in the Code still applied to her. She was also given direct instruction from a manager with the necessary authority that she was not to talk to the media.

[116] It is clear that the plaintiff considered that she had an issue of particular significance, and she did not believe that it had been dealt with appopriately by the Department. Although she had been told that her complaint was going to be investigated she was sceptical about what would be done. The plaintiff did not give any real consideration to the possibilities of pursuing the matter internally, or perhaps by taking it up with the Human Rights Commission, before ‘going public’. She seems not to have thought about the possibility of resorting to the Protected Disclosures Act procedure at all.

[117] Instead the plaintiff decided to make her concerns public. She found a willing audience. A good deal of public comment and debate ensued, in which the plaintiff did not hesitate to participate.

[118] We accept the Department’s submission that its decision to suspend, and then dismiss, the plaintiff had nothing to do with her sex. She was suspended and dismissed because of her repeated refusal to comply with the terms of the Code in relation to public comment by Departmental employees. There is nothing about the Department’s expectations of its employees in this respect that raises any issues about possible contravention of ss.22 of the Act. There is no reason to suppose that a male employee who conducted himself as the plaintiff did after she received the warning would have been treated any differently.

[119] The Department’s decisions to suspend and then to dismiss the plaintiff do not establish any treatment of a kind that is rendered unlawful by s.22(1) of the Act on the grounds of the plaintiff’s sex. This part of the plaintiff’s claim is dismissed as well.

Conclusion

[120] In summary:

• [a] We have concluded that the Department’s expectations of the plaintiff when she attended the graduation on 9 December 2004 (specifically, that she would not be a speaker, and that she would sit behind the men) amounted to detrimental treatment by reason of her sex because male employees employed on work of the same description as the plaintiff were not subjected to the same expectations. For the reasons given above, however, we have decided that no formal declaration is necessary;
  
• [b] Pursuant to s.92I(3)(a) of the Act we declare that the plaintiff was subjected by the Department to detriment (in the form of an investigation and warning) in circumstances in which male employees of the Department who were employed on work of the same description would not have been subjected to the same detriment (because there was no expectation that they would sit at the back of the graduation), and that the reason for the difference of treatment was the plaintiff’s sex;
  
• [c] In all other respects the plaintiff’s claims are dismissed.
  

Costs

[121] The question of costs was reserved at the hearing.

[122] We appreciate that there may be factors which we are not aware of, and which might properly be relevant to the assessment of costs (such as, for example, any offers of settlement that may have been written on a ‘without prejudice save as to costs’ basis). In any event while we do not have any firm view as to how costs ought to be allocated, we do think that this is a case in which an indication of our preliminary thinking might be helpful to the parties.

[123] The plaintiff’s success has been limited. We have agreed with her that she was a victim of detrimental treatment by reason of her sex, both at the time of the graduation and when she was investigated for what ocurred and then warned. But her claims for damages have all failed, and in particular she has not succeeded in establishing that the Department’s decision to suspend and then dismiss her amounted to detrimental treatment of her by reason of her sex. We have also been critical of the way that she chose to advance her concerns, including the way in which she behaved at the graduation itself. Equally we have been critical of some of the things that were done by the Department.

[124] If there is a silver lining to the clouds of this case, then it lies in the work that has been done by the Department’s Policy Team under the direction of Ms von Dadelszen to try to confront, in a robust way, the issues raised by the plaintiff’s experience. Whether the policy that has been developed to date is an answer is not for us to say in this case, but it is at very least a constructive ‘work in progress’. The Department is making a conscientious effort to find an appropriate outcome which responds to its obligations as an employer, while protecting its legitimate interest in providing culturally relevant solutions in the effort to reduce Maori offending and re-offending.

[125] Even if the plaintiff might have conducted herself more professionally, it is reasonably clear that it has effectively been her case that has stimulated the Department to tackle the issues.

[126] Our assessment as presently informed is that this might well be one of those cases in which costs should be left to lie where they have fallen.

[127] However if either or both of the parties wish to make an application for costs, the following timetable will apply

• [a] Any application for costs (whether by the plaintiff or the Department), together with any accompanying materials, to be filed and served within 28 days of the date of this decision;
  
• [b] Any submissions and/or materials in reply are to be filed and served within a further 21 days;
  
• [c] The Tribunal will then deal with the question of costs on the basis of the papers that will have been filed, and without any further viva voce hearing;
  
• [d] We leave it to the Chairperson of the Tribunal to vary this timetable if it is considered appropriate to do so.
  

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Mr R D C Hindle Ms P J Davies Mr E Daly
Chairperson Member Member