Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Maruf v Secretary, NSW Ministry of Health [2022] NSWCATAD 2 Hearing dates: 20 October 2021 Date of orders: 5 January 2022 Decision date: 05 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member F Given, General Member Decision: (1) The applicant's application to amend the complaint is refused. (2) The application is dismissed. Catchwords: ANTI-DISCRIMINATION – Discrimination on the ground of age – Application to amend complaint made at final hearing – Whether to exercise power to amend complaint – Whether respondent discriminated against applicant on the ground of age in determining who should be offered employment - Whether respondent discriminated against applicant on the ground of age in denying him access to transfers or promotions – Whether respondent or employee of respondent victimised applicant Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Braiding v Charles Sturt University [2015] NSWCATAD 242 Goldsteen v TCI Bondi Junction Pty Ltd (In Liq) (No 2) [2018] NSWCATAD 281 Zhang v Blinds Pty Ltd t/as Blinds by Peter Meyer [2008] NSWADTAP 24 Category: Principal judgment Parties: Msher Maruf (Applicant) NSW Ministry of Health (Respondent) Representation: Counsel: R Kumar (Respondent) Solicitors: Applicant (Self-Represented) Lander & Rogers (Respondent) File Number(s): 2021/00136119 Publication restriction: None REASONS FOR DECISION 1. Mr Maruf brought proceedings against his employer under the Anti-Discrimination Act 1977 (NSW) ("AD Act"). He claimed that his employer had discriminated against him on the ground of age by failing to give him promotions or transfers and that his employer had victimised him after he had complained about his supervisor bullying and/or discriminating against him. He also sought to amend his complaint to cover a longer period of time. 2. We refused Mr Maruf's application to amend his complaint, because the amendment application was made only a few days before the hearing, the proposed amendments did not have merit and were not particularised and he did not explain why he had not made some of the earlier complaints when he complained to the President of the Anti-Discrimination Board. 3. We found that the employer's decisions not to give Mr Maruf the positions he applied for and not to transfer him to other positions were not related to his age. We have also found that, to the extent that there was any detrimental treatment towards Mr Maruf on the part of the employer, this was not on a ground which could amount to victimisation. 4. For these reasons, we have dismissed Mr Maruf's application to the Tribunal. Background 1. Mr Maruf was, in 2020, 54 years of age. 2. Mr Maruf started working in the Microbiology Department at Prince of Wales Hospital in January 2018. The respondent was his employer. 3. In September 2019, Mr Maruf made a written complaint to the Chief Executive Officer of NSW Health Pathology, stating that he had been the subject of ongoing bullying and harassment by another staff member. He stated in the letter of complaint that he had reported the bullying and harassment to his manager, but that she had not taken any action. 4. On 19 November 2019, the staff member to whom Mr Maruf was required to report, Dr Kerry Varettas, wrote to him stating that she had been notified of concerns that his work performance was not meeting the standards set out in his Position Description. She enclosed a copy of a draft Performance Improvement Plan to be developed in consultation with Mr Maruf. 5. On 19 February 2020, Mr Maruf, Ms Catherine Keating, HR Consultant, Ms Anna Condylios, Senior Hospital Scientist and Mr Maruf's direct supervisor, and Dr Varettas attended a final meeting in relation to the Applicant's performance improvement plan. Mr Maruf had met the requirements of that plan. 6. In May 2020, Mr Maruf applied for a part-time position as a Medical Laboratory Scientist – Serology with the respondent ("the serology position"). He was not offered an interview for that position. 7. In July 2020, Mr Maruf applied for a position in the Virology section as a medical laboratory technician – virology ("the virology position"). Mr Maruf's application for that position was unsuccessful. 8. On 19 October 2020, an employee complained to Dr Varettas about Mr Maruf's behaviour towards her that day, saying that Mr Maruf had berated her for a mistake in front of others in the lab. 9. On 20 October 2020, Ms Keating and Dr Varettas had a meeting with Mr Maruf to discuss the incident on 19 October 2020. According to Dr Varettas, Mr Maruf raised his voice towards her at the end of the meeting and said that it was her fault that he did not get the full-time virology position and that she was racist and had discriminated against him. 10. Dr Varettas emailed the Human Resources Manager of NSW Health Pathology, Siobhan Cunliffe, complaining about Mr Maruf's behaviour, on 20 October 2020 and 23 October 2020. 11. On 28 October 2020, Ms Cunliffe wrote to Mr Maruf in relation to allegations of unsatisfactory behaviour on 20 October 2020. The allegation was that, in a meeting, he spoke to a staff member in a disrespectful manner in front of other team members in the laboratory and made derogatory comments about other staff members. Ms Cunliffe informed Mr Maruf that she had been appointed to investigate the allegations. 12. On 19 November 2020, the President of the Anti-Discrimination Board ("the President") received a complaint from Mr Maruf, alleging that he was victimised and discriminated against because of his age by NSW Health Pathology. He said that this occurred between 1 May 2020 and 19 November 2020 ("the period of the complaint"). NSW Pathology denied that it discriminated against Mr Maruf or that it victimised him. 13. On 22 December 2020, Ms Cunliffe wrote to Mr Maruf, stating that an investigation into allegations against Mr Maruf had concluded. The investigation found the following misconduct to be substantiated: that Mr Maruf spoke to his manager in a rude and disrespectful manner in front of others on 20 October 2020 and made inappropriate comments. Ms Cunliffe informed Mr Maruf that a preliminary decision had been made to issue him with a final warning. She invited him to provide a response. 14. On 19 January 2021, Mr Maruf responded to the letter and the proposed action against him. 15. On 25 January 2021, the respondent's Operations Manager decided to issue a first final formal warning letter, in response to the allegation against Mr Maruf being substantiated. 16. On 13 May 2021, a delegate of the President decided to refer the complaint to the Tribunal for determination pursuant to s 93C(b) of the AD Act. 17. On 24 September 2021, the respondent decided to terminate Mr Maruf's employment. 18. The applicant seeks orders in these proceedings that: 1. the respondent pay him damages of $27,000 by way of compensation for lost wages; 2. the respondent be enjoined from continuing or repeating any conduct rendered unlawful by the Act or the regulations; and 3. the respondent provide him with a written apology regarding the matters the subject of his complaint. Hearing 1. A hearing was held by telephone on 20 October 2021. Mr Maruf was self-represented and the respondent was represented by Ms Kumar of counsel. 2. The parties had filed written material prior to the hearing, in accordance with the Tribunal's directions. Mr Maruf relied upon points of claim, submissions and various documents. The respondent relied upon points of defence, submissions and affidavits of Kerry Varettas, Siobhan Cunliffe, Anna Condylios, Zin Naing and Daniel Trazerra. 3. At the hearing, Mr Maruf gave evidence and was cross examined. Mr Maruf cross examined Dr Varettas, Ms Cunliffe and Ms Condylios. 4. The Tribunal raised with the parties the question of whether the respondent was correctly named. The respondent had been named as "NSW Health Pathology" which is not a legal entity. Without objection, the Tribunal amended the name of the respondent to Mr Maruf's employer, the Secretary, NSW Ministry of Health. 5. At the end of the hearing, the Tribunal reserved its decision. Application to extend period of complaint 1. Mr Maruf's submissions, filed on 13 July 2021, referred to events which occurred outside the period of the complaint. For example, he submitted that his manager, Kerry Varettas, started victimising him after Mr Maruf had had his say about his workplace in the "People Matter Employee Survey" in July 2019. He also alleged that he became Dr Varettas's victim after he wrote to the CEO of NSW Health Pathology on 19 September 2019. He made a further allegation that he became aware, on 5 February 2021, that Dr Varettas had been stalking him and asking others to make complaints about him. He also referred to being suspended, and being issued with a first and final warning on 25 January 2021, which threatened him with dismissal. 2. It was not clear from Mr Maruf's submissions of 13 July 2021 whether he was seeking to amend the complaint to include matters which occurred outside the period of the complaint. 3. Mr Maruf's points of claim, filed on 13 July 2021 (the same day as his submissions), did not refer to extending the period of the complaint. He stated in the points of claim that the complaint alleged unlawful age discrimination which occurred between 1 May 2020 and 19 November 2020. This suggested that he was not seeking to amend the complaint. 4. The respondent stated in written submissions dated 13 September 2021 that matters outside the period of the complaint are outside the scope of the complaint Mr Maruf made to the President and should not be the subject of consideration and determination by the Tribunal in these proceedings. 5. On 15 October 2021, Mr Maruf filed further submissions in which he stated that the period of discrimination should be extended from July 2019 until 24 September 2021, when he was dismissed. 6. At the hearing, we confirmed with Mr Maruf that he was applying to amend the complaint to cover more incidents over the period of July 2019 to 24 September 2021. He said that he was. 7. Section 103(1) of the AD Act provides that the Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. The provision authorises the Tribunal to add complaints irrespective of whether they arise out of complaints that have been investigated by the President and irrespective of whether they relate to incidents occurring outside the periods of time the subject of the complaint to the President: Zhang v Blinds Pty Ltd t/as Blinds by Peter Meyer [2008] NSWADTAP 24 at [18]-[20]; Goldsteen v TCI Bondi Junction Pty Ltd (In Liq) (No 2) [2018] NSWCATAD 281 at [20]. 8. The discretion to amend a complaint is unfettered but it must be exercised judicially. Relevant considerations include the merits of the complaint, its age, the reasons it was not lodged with the original complaint and any prejudice to either party (Braiding v Charles Sturt University [2015] NSWCATAD 242 at [37]). 9. Mr Maruf's application to amend his complaint in his submissions of 15 October 2021 did not clearly identify the amendments he wished to make. It only became apparent to the Tribunal and to the respondent that he was pressing for an amendment in the submissions filed five days (or three working days) before the final hearing. The respondent opposed the amendment on the ground that it would not be procedurally fair for the respondent to have to meet the new allegations at the hearing. 10. Mr Maruf did not explain why he did not make the complaint about conduct prior to 1 May 2020 when he made the complaint to the President on 19 November 2020. He had an opportunity to complain about that conduct then, and that would have enabled the President to investigate it and, if the President chose to do so, endeavour to resolve the complaint by conciliation. The absence of any explanation by Mr Maruf for failing to include conduct before 1 May 2020 in his complaint to the President is a factor tending against the Tribunal amending the complaint to include such conduct. 11. The matters arising after the period of the complaint could not have been the subject of Mr Maruf's complaint to the President, because that complaint was made on the last day of the period of the complaint. However, those matters do not appear to us to have merit, at least in the form in which they are put in the submissions. Mr Maruf has not identified how Dr Varettas's alleged stalking of him constitutes age discrimination, nor provided any evidence to substantiate the allegation that she stalked him. Mr Maruf has not identified how or why the respondent's suspension of him from duties, then the respondent's decision to dismiss him, constitute age discrimination. On the face of it, these decisions relate to misconduct on Mr Maruf's part, not to his age. Mr Maruf has not provided any probative evidence that the decisions were made on the ground of his age. 12. We also consider that the respondent would be prejudiced by allowing the late amendment, in circumstances where it was not clear, until a few days before the hearing, that Mr Maruf was applying to amend his complaint. We note that the respondent has addressed, in evidence, most of the matters which allegedly occurred outside the period of complaint, such that the prejudice may not be as significant as it otherwise would have been. Nevertheless, there is a disadvantage to the respondent in having to deal with new complaints, which have not been clearly articulated, on the day of the hearing. 13. Further, we consider that allowing a significant amendment to the complaint at the hearing would not facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)). 14. For these reasons, we refused Mr Maruf's application to amend the complaint. Relevant law 1. Subsections 49ZYB(1) and (2) of the AD Act make it unlawful for an employer to discriminate against a person on the ground of age in certain respects. They provide: 49ZYB Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of age— (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of age— (a) in the terms or conditions of employment that are afforded to the employee, or (b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. 1. Subsections 49ZYA(1) and (2) of the AD Act provide for the circumstances in which a person is discriminated against on the ground of age. They provide: 49ZYA What constitutes discrimination on the ground of age (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator— (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1)(a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. 1. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the AD Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the AD Act, the act is taken to be done for that reason (AD Act, s 4A). 2. Victimisation is made unlawful by s 50 of the AD Act. That section provides: 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has— (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 1. An act done by a person as the employee of the person's employer which if done by the employer would be a contravention of the AD Act is taken to have been done by the employer also unless the employer did not, either before or after the doing of the act, authorise the employee, either expressly or by implication, to do the act (AD Act, s 53(1)). Serology and virology positions 1. Mr Maruf alleges that he was denied the serology and virology positions on the ground of his age. The only evidence he has provided to support his contention that the respondent did not give him those positions on the ground of his age is his assertion that the respondent employed candidates under 25 years of age. Mr Maruf contends that he was the best candidate for each of the positions. 2. In oral evidence, Mr Maruf complained that, in the interviews for those positions, Dr Varettas treated him in a way which was unacceptable. He said she gave him "a long face," did not make eye contact and did not smile. He also said that when she communicated the result of the interview to him, she was laughing at him. He said he was not sure why he did not get the job, but he thought it was just age. 3. When asked in cross examination what kind of discrimination he thought he had been subject to, Mr Maruf said at the time he did not know and he was still not sure. Mr Maruf said it could be age or it could be anything else. Serology position 1. Dr Varettas, Mr Daniel Trazzera, Work Health and Safety Coordinator, and Dr Zin Naing, Senior Hospital Scientist, were on the interview panel for the serology position. Forty-four people applied for the position. 2. Dr Varettas's affidavit evidence was that she and Mr Trazzerra and Dr Naing each completed spreadsheets with comments about each applicant, prior to choosing five candidates to proceed to the next stage of the process. They all agreed upon the five candidates who should proceed. Mr Maruf was not one of those candidates. Dr Varettas's view was that Mr Maruf's CV and application did not demonstrate that he had sufficient serology experience. Dr Varettas stated that Mr Maruf's age was not a factor in the view she formed as to his unsuitability for the position. 3. Mr Maruf did not challenge any of this evidence in cross examination and we accept it. 4. Mr Trazerra's affidavit evidence was that he considered that Mr Maruf was not suitable for the role as he did not have any experience in a diagnostic serology laboratory. He stated that Mr Maruf's age was not a relevant factor in his decision-making. 5. Dr Naing's affidavit evidence was that he could see that Mr Maruf's experience had mostly been in virology. Dr Naing considered that years of experience in serology was needed for the serology position and Mr Maruf did not have that experience. The applicant's age was not, according to Dr Naing, a relevant factor in deciding Mr Maruf's application. 6. Mr Maruf did not require Dr Naing or Mr Trazerra for cross examination. We accept their evidence. 7. Mr Maruf stated that he had been trained in using relevant software for the serology position and that he could follow any procedures after a short amount of training to perform the assays in laboratories. He stated that the successful candidate did not have experience using that software. Whilst that may be so, that does not address the respondent's evidence that he did not have sufficient experience in serology for the position. Virology position 1. Dr Varettas, Mr Trazzera and Ms Anna Condylios, Senior Hospital Scientist, Virology Area Laboratory Randwick, were on the interview panel for the virology position. 2. Forty-two candidates applied for the virology position and seven candidates, including Mr Maruf, progressed to the next stage of the recruitment process. This stage involved candidates completing a technical quiz and attending a formal interview. 3. Mr Maruf scored 9.5 out of 27 for the technical quiz. His total interview and quiz score was 37. The top candidate scored 60 and the second highest ranked candidate scored 58. 4. Dr Varettas's affidavit evidence was that she allocated candidates a score ranking based upon their total interview and quiz score, with one being the highest score. She ranked Mr Maruf as 5. Dr Varettas stated that the key differences between Mr Maruf's application and the application by the successful candidate were the level of experience and answering questions with the depth and accuracy which was expected. Her evidence was that Mr Maruf's age was not a relevant factor in the view she formed as to the unsuitability of Mr Maruf for the virology position. 5. Mr Maruf did not cross examine Dr Varettas about this evidence and we accept it. Mr Maruf's general challenge to Dr Varettas's evidence, on the basis that she was unfavourably disposed to him, or was biased against him, was unpersuasive. 6. Mr Trazerra gave Mr Maruf a score of 8.5 out of 15 for the interview. He stated that Mr Maruf's age was not a relevant factor in his decision regarding Mr Maruf's suitability for the virology position. 7. Ms Condylios gave Mr Maruf a score of 9.5 out of 15 for the interview. She marked his quiz, scoring him 9.5 out of 27. She stated that she considered this to be a very low score and that it indicated to her that he did not understand the science behind why he performs the tests. She also stated the Mr Maruf's age was not a factor in her decision-making. 8. Mr Maruf did not cross examine Mr Trazerra. He cross examined Ms Condylios but did not challenge the evidence referred to above. 9. We accept the evidence of Mr Trazerra and Ms Condylios in respect of the virology position. Mr Maruf alleged in his written submissions that Ms Condylios was biased against him and turned everyone against him. We are not persuaded, on the balance of probabilities, that this was the case. There is little evidence to support this contention. 10. Mr Maruf gave evidence about his qualifications which include a degree in biomedical science from the University of Technology Sydney, a Diploma in Pathology Testing from Granville TAFE and a degree in Veterinary Medicine from Baghdad University. He also stated that he had over 15 years' experience in administration, data entry, customer service and quality control. 11. We accept Mr Maruf's evidence as to his experience and qualifications. However, it does not establish that his application for the position was not rejected on the basis of merit, nor that he was treated less favourably than other candidates on the ground of age. Was the respondent's conduct discriminatory? 1. Mr Maruf is alleging unlawful discrimination on the ground of age under s 49ZYB(1)(b) of the AD Act. He has the onus of establishing that the respondent contravened that provision (or that an employee of the respondent contravened that provision). 2. We are not satisfied that the respondent's determination of who should be offered employment in respect of the serology and virology positions was done "on the ground of age." There is nothing to suggest that Mr Maruf's age was a factor in the decision-making of the respondent's employees. Even if Mr Maruf's assertion that the successful candidates were under 25 is correct, it does not follow that he was discriminated against on the ground of age. We find that the members of each selection panel chose other candidates for the positions, and rejected Mr Maruf's applications, on the basis of merit. 3. Accordingly, Mr Maruf's claims of age discrimination in relation to these positions are dismissed. Transfer opportunities 1. Mr Maruf claims that the respondent discriminated against him on the ground of age by denying him opportunities for promotion, transfer or training within s 49ZYB(2)(b) of the AD Act. 2. Part of Mr Maruf's complaint relates to the respondent declining his applications for positions advertised in 2017 and 2018. That part of Mr Maruf's complaint is not within the period of the complaint which is before us and, for reasons given above, we have declined to allow him to amend his complaint to include that alleged conduct. 3. Mr Maruf also makes a generalised complaint that he had written to the CEO and asked the HR manager several times to transfer him to different departments or hospitals, but his requests were declined. Mr Maruf says that the HR manager told him that "they do not transfer staff." However, he claims that, in 2020, during the COVID-19 pandemic, NSW Health Pathology took on two full-time staff members from another hospital without a proper recruitment process. 4. Mr Maruf did not make a complaint to the President about a failure of the CEO or the HR manager to transfer him to another hospital or position. His complaint related entirely to the conduct of Dr Varettas. The complaint about transfer appears to us to be outside the scope of the complaint which was referred to the Tribunal. 5. In his submissions filed on 15 October 2021, Mr Maruf alleged that he requested to be transferred to a different hospital or different department on 1 February 2021 and that his request was refused on 12 February 2021. 6. Ms Cunliffe's evidence, given in her affidavit, is that she is not aware that Mr Maruf had been denied any training opportunities and that she does not recall any specific requests from Mr Maruf to transfer him to another department or hospital. She stated that the staff members who were transferred from another hospital were brought in to assist with the increased workload resulting from the COVID-19 pandemic. 7. Mr Maruf asked Ms Cunliffe in cross examination whether he had asked her for a transfer. She said that he may have but that she did not remember. 8. We accept Ms Cunliffe's evidence. 9. We find that the requests for transfer and denial of the requests were outside the period of the complaint and not within the scope of the complaint made to the President. Even if we are wrong about that, there is nothing to indicate that the failure to give Mr Maruf a transfer was on the ground of his age. 10. Accordingly, Mr Maruf's complaint of discrimination under s 49ZYB(2)(b) of the AD Act is dismissed. Victimisation 1. Mr Maruf makes several complaints of victimisation which fall outside the period of complaint. As we have not given him permission to amend the complaint, we have not considered these victimisation complaints further. 2. Mr Maruf complained that he was victimised by Dr Varettas after he had his say about the workplace in the People Employee Matter Survey in July 2019 and after he wrote to the Chief Executive of NSW Health Pathology on 19 September 2019. It is possible that some of the alleged conduct said to constitute victimisation occurred after 1 May 2020 (that is, within the period of complaint). Mr Maruf has not identified the dates on which he says he was victimised. 3. Dr Varettas's evidence is that she was not aware of Mr Maruf's responses to the survey or his letter to the Chief Executive. That evidence was not shaken in cross examination and we accept it. 4. Accordingly, we are not satisfied that, if Mr Maruf was subject to a detriment by Dr Varettas as he claims, this was on the ground that Mr Maruf had made an allegation that Dr Varettas had committed an act which would amount to a contravention of the AD Act (see AD Act, s 50(1)(c)), or on any other ground set out in s 50(1) of the AD Act. 5. Mr Maruf claims that Dr Varettas provided negative feedback or references about his work performance, but does not specify when this occurred. Dr Varettas's evidence is that she provided feedback about Mr Maruf on one occasion only, on 3 August 2021. 6. We have not considered this complaint as it is outside the period of the complaint. In addition, Mr Maruf did not mention this alleged conduct in his complaint to the President. That is, he did not complain to the President that Dr Varettas provided negative feedback or references about him. This conduct is outside the scope of the complaint referred to the Tribunal. 7. Mr Maruf alleged that, on 20 October 2020, when he told Dr Varettas in a meeting that she discriminated against him for his job application in July 2020, she initiated a formal grievance against him for making rude and inappropriate comments. This is not conduct which was the subject of his complaint to the President and which was referred to the Tribunal. If we are wrong about this, we would not uphold the allegation of discrimination. 8. Dr Varettas's evidence is that she sent emails to Ms Cunliffe regarding Mr Maruf on 20 October 2020 and 23 October 2020. Those emails are in evidence and describe Mr Maruf's behaviour as being aggressive, threatening and verbally abusive. 9. Dr Varettas stated that the reason she sent the emails was that she felt that Mr Maruf's behaviour and communication towards his colleague on 19 October 2020 and towards herself on 20 October 2020 were not appropriate in the workplace. She said she felt increasingly unsafe communicating with him in the workplace, following several instances of what she considered to be aggressive and abusive behaviour. Dr Varettas stated that Mr Maruf's allegations that she had discriminated against him were not relevant factors behind the sending of the emails. 10. This evidence was not challenged in cross examination and we accept it. 11. For these reasons, Mr Maruf has not established that he was victimised by the respondent or an employee of the respondent. His complaint of victimisation is dismissed. Orders 1. For the reasons given above, we make the following orders: 1. The applicant's application to amend the complaint is refused. 2. The application is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 January 2022