Sharma v Legal Aid Queensland [2001] FCA 1699

FEDERAL COURT OF AUSTRALIA

Sharma v Legal Aid Queensland [2001] FCA 1699

HUMAN RIGHTS & EQUAL OPPORTUNITY - racial discrimination in employment - use of selection criteria in appointment - whether decision not to appoint highest-scoring candidate based on race - whether decision that candidate did not meet an essential criterion based on race - whether physical appearance of candidate taken into account by selection panel members - whether procedural differences adopted by panel based on race of candidate - standard of proof to be applied - small number of people from non-English speaking backgrounds employed by organisation not indicative of racist attitude Statutes Freedom of Information Act 1982 (Cth) Racial Discrimination Act 1975 (Cth) ss 9, 15, 18B Cases Briginshaw v Briginshaw (1938) 60 CLR 336 Applied State of Victoria v McKenna (2000) EOC 93-080 Referred to West Midlands Passenger Transport Executive v Jaquant Singh [1988] 1 WLR 730 Cited SHARMA v LEGAL AID QUEENSLAND Q184 OF 2001 KIEFEL J BRISBANE 4 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q184 OF 2001

BETWEEN: NARENDRA KUMAR SHARMA

APPLICANT

AND: LEGAL AID QUEENSLAND

RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 4 DECEMBER 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q184 OF 2001

BETWEEN: NARENDRA KUMAR SHARMA

APPLICANT

AND: LEGAL AID QUEENSLAND

RESPONDENT

JUDGE: KIEFEL J

DATE: 4 DECEMBER 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Mr Sharma, the applicant, was employed with Legal Aid Queensland, the respondent, from 19 December 1997. He commenced in a casual position but thereafter applied for other positions with that organisation. Two such positions, the Solicitor-in-Charge of the Mackay office and that of Senior Solicitor in Mt Isa, are the focus of the applicant's claims that he was discriminated against on account of his race and that this resulted in him not being offered the positions. In the case of the position in Mackay, the applicant's case is that he fulfilled the selection criteria and was the highest scoring candidate, but nevertheless was not offered the position. With respect to that in Mt Isa, he was not rated as highly as the other candidate, but he says that he was not given the same latitude in preparing answers to questions. The difference in the panel's treatment of him can be explained only on the basis of views pertaining to his race, it is submitted. The balance of the submissions made on his behalf rely upon a composite picture drawn from other treatment of the applicant by other employees of the respondent during the course of his employment; from the respondent's lack of assistance in his training and by reference to the position of persons from non-English speaking backgrounds within the organisation. 2 The applicant applied for the position of Solicitor-in-Charge of the Mackay office after the position was advertised in August 1998. The "Purpose of Position" was described in the "Position Description" document as one to: "Undertake overall responsibility for the management of the office. The office provides the full range of services offered by the Legal Aid Board to financially and socially disadvantaged people to enhance access to justice in Queensland." 3 The "Major Duties" were listed as: 1. Maintain a high standard of professional service and office management ensuring that performance targets are met in all areas of responsibility, and continually improving the productivity and cost efficiency of the office. 2. Contribute towards the formation and effective implementation of Legal Aid Queensland Strategic and Operational Plans. 3. Promote and develop a customer service focus within the office. 4. Provide legal advice and information to members of the public at the office, at hospitals and corrections facilities with the region as required. 5. Undertake casework for legally aided persons. 6. Ensure the provision of duty lawyer services in the Magistrates and Children's Courts. 7. Provide appropriate and effective supervision of staff, promoting teamwork and the ongoing development of staff. 8. Ensure effective implementation and support for new initiatives and programmes including Primary Dispute Resolution. 9. Maintain effective liaison with the local Magistrate, representatives of the Law Association, private practitioners and community agencies to ensure that the administration of assignments work is effective, efficient and within guidelines, and that the office is significantly involved in the local community and the information and education role is able to be effectively undertaken. 10. Manage the office budgets and exercise financial responsibilities as set out in the Instrument of Delegation. 11. Ensure the implementation of approved policies and practice of the legal practice and administrative functioning of the office including all Human Resource policies and practices. 12. Ensure all work undertaken on a file, by file managers, complies with prescribed standards for quality and case management." 4 Short-listing and selection were said to be based on the following criteria (the "selection criteria"): "SC2 Demonstrated knowledge and proven ability in management including the implementation of strategies which assist in achieving strategic and operational goals and effective leadership of staff in a client focused environment. SC3 Highly Developed communication, negotiation and representational skills including the capacity to deal with members of the public in stressful situations. SC4 Substantial capacity to provide quality legal advice and representation. SC5 Knowledge of or ability to rapidly acquire knowledge of Legal Aid Queensland policies and procedures. SC6 Demonstrated reliability in meeting deadlines and commitments and working with highly confidential information. SC7 Knowledge of contemporary human resource management issues including Equal Employment Opportunities, performance planning and review, workplace health and safety issues etc". (Emphasis added). In the balance of these reasons I shall refer to these criteria as "SC…". SC1 referred to the basic legal qualifications necessary. The advertisement for the position advised that the successful applicant must: "h have demonstrated knowledge and proven ability in management and leadership · have highly developed interpersonal, communication, negotiation and representation skills including the capacity to deal with members of the public in stressful situations · have substantial capacity to provide quality legal advice and representation." These proceedings focus upon SC4 and the respective panels' views about the applicant's ability to provide representation in Court. 5 The respondent's handbook contains its policy concerning recruitment and selection. It describes the use of the selection criteria in these terms: "Merit is a relationship between an individual's job related qualities and those job related qualities genuinely required for performance in a particular position. Properly developed selection criteria are fundamental to merit based selection. Selection criteria are developed by taking such factors as abilities, skills, knowledge, qualifications (if necessary), potential and relating them to the position in question. The question is asked, "What are the actual abilities, skills, knowledge and qualifications (if necessary) that are needed to achieve the outcomes of the position?". These are the selection criteria for the position and each applicant is then assessed against the criteria. It is possible that all applicants may rate highly against many of the selection criteria and each may be able to perform the duties of the position well. However, only the best/most highly rated/most meritorious person will be selected for the position." 6 Mr Sharma's qualifications at that time included degrees in law from universities in both India and Queensland and a Graduate Diploma in Legal Practice in Queensland. He was also undertaking a post-graduate degree. He had practised on his own account for four years in India. He had worked as a volunteer in various legal services in Queensland and with a firm of solicitors in Queensland in general areas of law where he had had the conduct of a small amount of criminal matters. His work with the Tenants' Union and with the respondent involved legal advice and assistance. In relation to SC4 he claimed "considerable experience in general law practice and specialist experience in family law, discrimination, immigration, tenancy and social security matters". 7 The selection panel for the position in Mackay consisted of Mr David Holliday (Chair), Mr Dermot Kehoe and Ms Karen Chapman. Mr Sharma and four other persons were interviewed. In the "Applicant Shortlisting Grid" the essential and highly desirable criteria with respect to Mr Sharma were each ticked, as they were with respect to two other applicants. Mr Sharma has produced, from documents produced in response to a request under the Freedom of Information Act 1982 (Cth), the notes of Ms Chapman on the interview which notes his experience in India as family law and "general". The comment against each of the criteria is "good". The notes kept by Mr Holliday with respect to SC4 and the selection report itself were not produced in evidence. It was said that they could not be found. The evidence suggests that they may have been placed on another file relating to a position being offered in Ipswich at the same time, and involving the same panel members, and that that file has been destroyed. The applicant submits that this is suspicious. 8 No recommendation was made for the appointment of a person to the Mackay position. In a statement of reasons provided to the applicant at his request he was advised: "1. The selection panel determined that no applicant sufficiently met the selection criteria to warrant appointment to the position. 2. The selection panel determined you had insufficient breadth of experience as a practicing lawyer and that you did not show the capacity to lead and manage a remote regional office." 9 This is consistent with the advice provided by Mr Holliday to the applicant orally at an earlier point. 10 The position was re-advertised on 24 October 1998 and four people were short-listed for interview. Mr Sharma was one of them. He had been encouraged to re-apply. He withdrew his application, he says, when he became aware that the person who was acting temporarily as Solicitor-in-Charge in Mackay had applied for the position. He later added that he had also been concerned because Mr Holliday was again on the panel. 11 The successful applicant for the Mackay position did have one area where her experience was deficient, that of family law. She was however assessed as being "capable of performing the position" and it was said: "While she will have a steep learning curve in relation to family law she is certainly capable of acquiring the necessary skills and knowledge." 12 Following upon this and one other position for which he unsuccessfully applied, the applicant had a discussion with the Legal Practice Co-ordinator, Ms Chapman. He had already been referred to the prospect of the Senior Solicitors' positions in Mt Isa and Southport by the Chief Executive Officer who had suggested to Ms Chapman that he be given some criminal law experience. Ms Chapman ruled out the position in Southport, as it was likely to attract considerable competition and expressions of interest from employees already classified as permanent. The applicant alleges that he was told by Ms Chapman that if he proved his capability in the section in which he was working (Committal, Duty Lawyer and Legal Advice and Prison Service) he was "a certainty" for the Mt Isa vacancy. This allegation is denied by Ms Chapman who admits only that she was encouraging, and that she suggested Mt Isa as a means of addressing the deficiencies in the applicant's criminal law and court experience. Late in June he was offered a contract in that position but one for no more than two years. He advised Ms Chapman that he desired a permanent career with the respondent. He was not concerned about the need for advertising as part of a formal selection process. Mr Sharma alleges, and Ms Chapman denies, that she then advised him to make arrangements to rent or sell his house. Ms Chapman agrees that she suggested that he test the housing market in Mt Isa. She denies that she conveyed to him that he was assured of the position. 13 Mr Sharma travelled to Mt Isa and took up the position in an acting capacity whilst the position was advertised. He advised his family, relatives and friends that he and his family would be moving to Mt Isa on a permanent basis. 14 The position of Senior Solicitor in Mt Isa was advertised in July 1999. The major duties listed in the Position Description document were the same as those numbered 1-9 of the list used for Mackay. Paragraphs 10-13 were in these terms: "10. Serve as the Chief Executive Officer's representative for the Legal Aid Queensland Committee for the Regional Offices. 11. Ensure the implementation of approved policies and practice of the legal practice and administrative functioning of the office including all Human Resource policies and practices. 12. Undertaken Assignment Functions. 13. Ensure all work undertaken on a file complies with prescribed standards for quality and case management." 15 The selection criteria were in the same terms as those for the position in Mackay, set out above. SC4 "Substantial capacity to provide quality legal advice and representation" was said to prove the stumbling block for the applicant. The other interviewee was marked much higher on this criterion. To some significant degree this followed upon that candidate's answers to a practical problem, set in a courtroom and involving a client, upon which candidates were asked to advise about the action which should be taken. Whilst the applicant scored more highly in the other criteria, he did not in this area. SC4 was an essential criterion and a system of weighting was employed. 16 The Selection Report identified the scores for the other, successful, applicant as 57.33 out of 100 and the applicant as 53.16 and went on: "Although the scores might appear to be relatively close the panel decided that the scores accurately reflected the merits of the candidates and that the apparently close scores were a result of averaging a different pattern of scores." 17 In the additional comments made by the panel with respect to the applicant, it concluded: "If it was considered necessary to appoint another solicitor to Mt Isa, then the panel considers that Narendra would be an appropriate appointment to a second solicitor position in the Mt Isa office. The essential issues identified during this process for Narendra appeared to be a lack of experience and training in the representation aspects, and possibly also a tendency towards operating better in a more structured environment with clear-cut rules and operating procedures. His level of ability would suit an appointment focussed on advice or operating to a structured program, and the panel considers Narendra would then be in a position to perform competently at this level, and have the opportunity to develop skills to perform competently in other roles." 18 The recommendation of the panel, to appoint the other candidate, was adopted by the Chief Executive Officer. The reasons given by him for the decision, dated 14 April 2000, were as follows: "1. The selection panel rated another candidate at a higher score and concluded that the other candidate was more meritorious for the position. 2. The other candidate was assessed at demonstrating a better all round grasp of the requirements of the position and in particular, the ability to provide quality legal advice and representation as required by selection criteria 4. 3. The selection panel determined your ability to provide representation as required by selection criteria 4 was particularly low due to lack of experience and training and that this meant you were not of a sufficient level of competency to run the Mt Isa office as a sole operator. 4. The referee checks confirmed the selection panel's findings at interview." 19 On 6 August 1999 the applicant had a meeting with Ms Chapman when he was advised that the other candidate had been recommended for the position. He says that when he enquired as to the reason, she said words to the effect that it was "the way he answered the questions". The applicant then says that he asked whether it had to do with his "accent or what" and that Ms Chapman replied "Yes, but I suppose English is your second language". Ms Chapman denies this aspect of the conversation. Ms Chapman says that it was the applicant who raised the prospect that his cultural and language differences had counted against him, amongst other things, and that she told him that that was not the case. He also said that he thought that Ms Taylor and another officer of the respondent were against him. She said that she explained how the other candidate scored and that his lack of experience in criminal work had counted against him. The applicant became upset. It is evident that the applicant had suffered considerable embarrassment as a result having notified others of his family's intended move to Mt Isa. 20 Some written communications were exchanged between Ms Chapman and the applicant in the months following. It is not necessary to refer to them in detail. The applicant was offered another contract for six months but he rejected it. His current contract came to an end on 10 September 1999. On 8 June 2000 the applicant's solicitors lodged a complaint with the Human Rights and Equal Opportunity Commission. The complaint was found to be lacking in substance. On 28 December 2000 the applicant brought proceedings in this Court.