Omeri v Quality Assurance Services Pty Ltd (No 2) [2004] NSWADT 105

CITATION: Omeri v Quality Assurance Services Pty Ltd (No 2) [2004] NSWADT 105 revised - 11/10/2004 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Tahir Omeri RESPONDENT Quality Assurance Services Pty Ltd FILE NUMBER: 021110 HEARING DATES: 09/12/2003 SUBMISSIONS CLOSED: 12/09/2003 DATE OF DECISION: 06/02/2004

BEFORE: Needham J - Judicial Member; Mooney L - Non Judicial Member; Toltz D - Non Judicial Member APPLICATION: Race Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 Fenwick v. Beveridge Building Products (1985) 62 ALR 275 CASES CITED: Harding v. Vice-Chancellor, University of New South Wales [2002] NSWADTAP 36 Omeri v. Quality Assurance Services Australia Pty Ltd, [2003] NSWADT 188 Purvis v. State of New South Wales (2003) 202 ALR 133 APPLICANT REPRESENTATION: In person RESPONDENT K Eastman, barrister ORDERS: 1. Application dismissed; 2. No order as to costs.

REASONS FOR DECISION 1 Mr Tahir Omeri ("the applicant" or "Mr Omeri") is a Muslim from the Middle East. He was employed by Quality Assurance Services Pty Ltd ("QAS" or "the respondent") from 15 May 1999 as an auditor. 2 He complained to the President of the Anti-Discrimination Board on 10 January 2001. That complaint was declined as "lacking in substance" by the Board on 23 September 2002. Mr Omeri requested a referral to this Tribunal pursuant to s 91(2) of the Anti-Discrimination Act 1977. The respondent made application by way of s 111 of the Anti-Discrimination Act for dismissal of the proceedings as misconceived or lacking in substance. That application was dismissed by this Tribunal on 27 August 2003. In that decision (Omeri v. Quality Assurance Services Australia Pty Ltd, [2003] NSWADT 188), the Tribunal said:- "… the facts at their highest show that there may be grounds on which to decide that the complaint is substantiated. The varying explanations for the redundancy may point to a hidden agenda within QAS and the failure by the respondent to point to a particular reason does not assist the Tribunal in dispelling this suspicion. Although the objective evidence is not strongly in favour of a finding of discriminatory conduct, there is sufficient before the Tribunal to allow this matter to proceed to a hearing". 3 The hearing referred to in that quote took place on 9 December 2003. The Applicant's Case 4 The facts were set out in the decision of the Tribunal in dismissing the s 111 application by the respondent as follows (with amendments to slight errors which appear in that decision):- a) Mr Omeri's complaint arose out of the circumstances of his retrenchment. He says the retrenchment was because of his race and/or ethno-religious background. Mr Omeri is a Muslim from the Middle East. b) The retrenchment took place on 31 August 2000. Mr Omeri says that at the QAS monthly general meeting, which he attended, the then General Manager, Mr Colin Stuart, painted "a rosy picture of the future of the company". After lunch, Mr Stuart met with Mr Omeri and informed him that he was to be made redundant, because:- i) QAS was "over-resourced by between 20 and 24%; and ii) Mr Omeri's name came up because he earned less money during the last financial year than other auditors. c) Also present were the HR Manager, Mr Searle, and Mr Omeri's immediate manager, Mr Alston. Mr Omeri expressed disbelief that this was the case, and Mr Stuart said to him, in a raised voice, "Are you calling me a liar?" d) On 4 September 2000, Mr Omeri met with Mr Searle to finalise figures for his retrenchment. Mr Searle said to Mr Omeri that his earnings and performance had "absolutely nothing to do with the retrenchment", and that both were fine. He said, "There isn't enough work for all auditors and other auditors had more codes". Mr Omeri says that this is not true, and that he has the same number of codes, if not more, as other auditors. Codes are, Mr Omeri says, "simple representations of auditors' training, education, knowledge and experience". e) Mr Omeri then requested an urgent meeting with Mr Stuart's boss, Keith Ketheeswaran, as he was "convinced the retrenchment was a result of ethno-religious discrimination". He had that meeting on 25 September 2000. In a letter dated 31 October 2000, received by him on 7 November, a further explanation was offered; that the codes held by Mr Omeri were "low risk generic codes". f) Mr Omeri says that there were subjective and objective reasons for believing his retrenchment was contrary to the provisions of the Anti-Discrimination Act, ss 7 and 8. His objective reasons were the different reasons given for his retrenchment, all of which he says were incorrect; the fact that his immediate supervisor (Mr Alston) was not consulted, and the speed of the retrenchment. The subjective reasons were a "visible change in facial expression" in Mr Stuart in March 2000 when he discovered that Mr Omeri's name was Arabic in origin, and that he became more hostile when Mr Omeri grew a beard which "a lot of people seem to associate with people of middle eastern origin". Mr Omeri says that Mr Stuart's facial expression when giving news of the retrenchment was readable as being discriminatory. g) Mr Stuart was heard by someone, who was not named or called or at the hearing, to say "Getting rid of that f....ing Arab was my good deed for the day"; h) Another QAS auditor of Middle Eastern extraction, Mr Latif, was "very much discriminated against" before Mr Omeri joined QAS, and left both QAS and Australia as a result. 5 The facial expression referred to (f) above is referred to in paragraph 17 below. Mr Omeri contended that he was able to interpret the expression as being "Gotcha you f***ing Arab". 6 The applicant was cross-examined on the question of his workplace performance, and in particular as to some complaints which had been made by clients against him. He said, that the company "did not have the evidence to dismiss him" at the time of the complaint. That impression appears to be borne out by the events which happened – he was not, in fact, dismissed as a result of the complaints. Mr Omeri characterised his case against the respondent as being "why make me redundant, rather than Mr or Mrs Bloggs?", the implication being that there was no reason to dismiss him other than an exercise in unlawful discrimination. 7 Mr Omeri also tendered some documents and made some submissions on the hearing, but these did not add in any significant or relevant way to the summary as set out above. The Respondent's Case 8 Quality Assurance Services Pty Ltd, now known as SAI Global Ltd, gave evidence by way of statement from Mr Martin Searle (Exhibit 1). Mr Searle now occupies the position of General Manager Professional Services/Business Excellence. The company provides "conformity assessment" or auditing services for compliance with Australian or international standards. 9 Mr Searle gave evidence that the company had corporate policies prohibiting discrimination, and has delivered internal training programmes (three since 1998). 10 The respondent sought to rely upon incidents in Mr Omeri's work history as follows. Mr Searle provided, in Exhibit 1, a copy of an internal "record of conversation" setting out concerns with Mr Omeri on 9 November 1999. That record of conversation noted that Mr Omeri's earnings were "below budget" and that he should "show more initiative in identifying (an) apparent lack of work". In December 1999, Mr Di Palma, the applicant's manager, received a complaint from a client's management systems agent about the applicant. The complaint was both as to Mr Omeri's work practices but also that Mr Omeri "threatened" the agent's client that unless they filled out a particular form, the certification would not proceed. Finally, a complaint was received from a client on 31 March 2000, which client referred to the applicant's "arrogant attitude" and time issues. The complaint said, "our company would prefer not to see Mr Omeri again". 11 The last-mentioned complaint was shown to Mr Omeri, who reacted by sending a letter dated 10 April 2000 directly to the complainant. That letter was not in any way conciliatory. It referred to the complaint as being "a shameless barefaced lie and/or fabrication" and to the complainant herself as "look(ing) disgusting on the day of the audit and I am now convinced you also possess a vicious and vindictive mind that governs your behaviour to match and/or complement that look". 12 An investigation was held into the sending of the letter. A letter was sent to Mr Omeri confirming the matters dealt with at the meeting. In that letter, Mr Stuart, the general manager, confirmed:- a) the applicant drafted and sent the letter; b) he was aware that Mr Di Palma was handling the complaint and had asked Mr Omeri not to reply to the complaint directly. Mr Omeri, both at the investigation and at the hearing, contended that the letter was a private response and not related to the respondent. Further, he felt he had a "common law right" to defend himself and his reputation. Finally, the minutes recorded that he said that "if he had had a knife in his hand at the time, he would have felt like stabbing the complainant". At the investigation meeting, Mr Omeri said that he would not have handled the situation differently and that he would react the same way again, although at the hearing he resiled from this position. Mr Omeri was asked to, and did, send a letter of apology to the client. 13 The company regarded the issue as "closed", but warned Mr Omeri that any repetition of the behaviour would result in the termination of his employment. 14 The redundancy letter sent to Mr Omeri on 30 August 2000 put as the reason for the redundancy "the organisation (is) seeking to enhance the efficiency and effectiveness of our business services following a review of our current commitments and an assessment of our future workload". 15 Mr Searle gave evidence that the redundancy was because of "his marginal performance coupled with his inappropriate behaviour were considered to restrict his potential allocation to the Respondent's medium to large client base" (Exhibit 1, par 23) and that "the reason for the Applicant's termination was based on the restructuring necessitated by a decline in business. The Applicant's marginal performance, in respect of which he was going through a performance management process, was also taken into account". 16 A meeting was held with Mr Omeri on 28 September 2000. Present were Keith Ketheeswaran, the Managing Director of the respondent, and Hanna Myllyoja, in-house counsel. At this meeting, the applicant's allegations of race discrimination were raised. Mr Omeri also raised Mr Stuart's response to him at the meeting directly after the meeting of 31 August 2000 ("are you calling me a liar?"). He also raised the meeting of 4 September 2000 in which Mr Searle related the retrenchment to the codes held by Mr Omeri. 17 At the meeting of 28 September, Mr Omeri was asked by Ms Myllyoja to clarify his allegations of race/religious discrimination. To that request, the meeting minutes (Exhibit 1, annexure I) noted that Mr Omeri responded that "nobody had expressly said anything, or even implied anything, but that "he could feel it". When he spoke to C(olin) S(tuart) he could see it in CS's eyes that CS was thinking "Gotcha you f***ing arab". 18 Mr Stuart was not available to give evidence, but Mr Searle gave evidence on information and belief that Mr Stuart had not said the words attributed to him by Mr Omeri. 19 On 31 October 2000 Mr Ketheeswaran wrote to Mr Omeri in response to the meeting. That letter (Exhibit E) gave as the reasons for the redundancy:- a) Staffing levels, identified as being 20-24% in surplus; b) the applicant's codes being "generic, low-risk codes", and c) the total revenue generated by each auditor, and that Mr Omeri had not achieved the 1999/2000 revenue target. The letter denied that there was "any hint of racial, religious or cultural prejudice against you, either during the retrenchment process or at any other time". 20 Mr Searle also referred to Mr Latif. He said that Mr Latif had been employed by the company from May 1993 to November 1996. He says that the company never received a complaint of discrimination or unfair treatment before or after his employment. Mr Searle was cross-examined by the applicant, and gave evidence of the redundancy process, the considerations brought to bear on the decision to retrench Mr Omeri, and the "overstaffing" issue. 21 Ms Myllyoja also gave evidence for the respondent in relation to the taking of notes at the meeting at which she was present. The Tribunal does not consider her integrity or that of the meeting notes to have been challenged in any way. The applicant's reply 22 Mr Omeri replied to Mr Searle's evidence by way of a mixture of statement and submission, which became Exhibit D. Exhibit D raises the following issues (amongst other, less relevant ones):- a) Mr Searle's change in position from 4 September 2000, in which he assured the applicant that his performance was not part of the redundancy, to referring to it as "marginal" at the hearing; b) It is not to the point to say that the respondent employed other persons of other ethnicities, when Mr Omeri's complaint is a specific one to his own circumstances; c) The recording of the complaints against him left out evidence which was exculpatory of him, including an email from Mr Di Palma to the effect that the complainant was happy with the audit and only complained after the bill was received; d) The letter to the complainant was written "in a state of shock" and as a private person, not as an employee of the respondent. e) He denies the "If I had a knife" comment in the words set out in the minutes, and says that he used an expression which "convey(ed) the depths of one's feelings". f) The respondent company was meeting targets in April 2000 (annexure D to Exhibit D) and Mr Omeri was booked for audits throughout September; g) Mr Omeri has still not received copies of redundancy policies from the company. 23 The Tribunal has not recorded various parts of Exhibit D which relate to emails and other communications between employees of the respondent evidencing dissatisfaction by them with various aspects of corporate policy, or support of Mr Omeri, as not being relevant to the issues in this matter. Consideration 24 As set out in the decision of the Tribunal in the s 111 application, the objective evidence of discrimination was not strong. Mr Omeri admitted that nobody had ever said or done anything which was overtly discriminatory. It is fair to say that some of the "objective" evidence relied upon by the applicant – in particular, the "reading" of Mr Stuart's thoughts – were subjective in the extreme. 25 The respondent submits that in order for the applicant to succeed, he must first show that he has the relevant characteristic of, in this case, race and ethno-religious origin. 26 That part of section 7 of the Anti-Discrimination Act which relates to direct discrimination (indirect discrimination not being alleged) provides:- "A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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 of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race …" (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race." 27 "Race" is defined in s 4(1) of the Act as follows:- "In this Act, except insofar as the context or subject matter otherwise indicates or requires:- "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin". 28 While the term "ethno-religious" has not been defined in the Act, the Appeal Panel said (in Khan v. Commissioner, Department of Corrective Services [2001] NSWADTAP 1 at [44]):- "If to be a Muslim could cause a person to fall within the statutory definition of "race", treatment afforded to that person because he/she is s a Muslim must be, for the purposes of the ADA, treatment on the ground of race. As we have previously stated, the issue of whether the complainant, as a Muslim, falls within the statutory definition of "race" awaits proper determination". 29 The applicant submits that he was discriminated against on the grounds of both race, and his religion, as he is a Muslim. The respondent submits that there is nothing in the applicant's evidence or submissions which would indicate that there was anything to link the conduct alleged with Mr Omeri's religion. 30 On this point, the Tribunal agrees. The only direct evidence of anything overtly related to race is the "objective" reading of Mr Stuart's thoughts, which referred to Mr Omeri as a "f***ing arab". There is no mention of his religion. Consequently, the complaint will be dealt with as one of discrimination on the grounds of race only. 31 Section 8 of the Anti-Discrimination Act relates to discrimination against employees. Section 8(2) provides:- "It is unlawful for an employer to discriminate against an employee on the ground of race:- (a) in the terms or conditions of employment which the employer affords the employee; (b) by denying the employee access, or limiting the employee's 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". 32 There is no dispute that the applicant was an employee, nor that his retrenchment fell within the definition of "dismissal" or "other detriment" in sub-para (c). 33 The respondent submits, correctly, that the approach to be taken in determining whether unlawful discrimination has taken place is that in Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5. That is, the applicant must establish:- a) that his retrenchment was "less favourable treatment"; b) that he was treated less favourably compared to a person who was not of his race or ethno-religious origin was treated, in the same or not materially different circumstances; and c) a reason for the respondent's treatment of him was race. 34 It is a part of a direct discrimination claim to show that the applicant was, in fact, treated differently from others who were not of his race (or ethno-religious background). The respondent submits that he has not done so, in that he has not identified a specific "comparator" against whom the conduct of the respondent towards the applicant may be compared. In this case, using the analysis of the High Court in Purvis v. State of New South Wales (2003) 202 ALR 133, the proper comparator would be an auditor with the same or similar codes and experience as Mr Omeri, but who was not of Arabic descent (or a Muslim, if there had been a case for ethno-religious discrimination made out). 35 The evidence does, in our view, provide such a comparator. Mr Omeri gave evidence, which was not disputed, that other auditors in his circumstances, who were not of Arabic descent, were not retrenched. Mr Searle indicated in cross-examination that there were 35 different backgrounds in the company. The "comparator" need not necessarily be an actual one, but can be hypothetical one (Sleiman v. Kmart Australia Ltd [2003] NSWADT21 at par [41]). It is enough for there to be evidence that other auditors of non-Arabic descent, who were not treated in the way the applicant was, for there to be a "comparator". The evidence is that not all auditors were retrenched; in fact, Mr Omeri was the only one from the Sydney office who was. In that case, his retrenchment was "less favourable treatment" compared to the other auditors. 36 The Tribunal must now turn to the question of causation – was race a reason for the less favourable treatment? 37 Mr Omeri submits that, in considering that issue, one must take into account that QAS was a qualifiying or supervisory organisation, and thus should be subjected to higher standards than other, "ordinary" organisations. He contended that he was denied procedural fairness in the retrenchment, in not being able to proceed to his performance review as scheduled. Neither of these submissions can be upheld. There is one standard under the Anti-Discrimination Act to be applied, and that appears in the legislative provisions. To enforce a higher standard upon an auditing company is not justified by the Act. Nor would it be justifiable to bring into account questions of unfair dismissal or mollification of feelings. 38 Mr Omeri submitted that in the light of the numerous explanations as to the reason for the retrenchment, it was an unavoidable conclusion that "my race and ethno-religious background and nothing else was the cause of my being made redundant". 39 It is clear that there were a number of explanations given to to Mr Omeri over the years for the reasons for Mr Omeri's retrenchment, not all of them consistent with each other. That, however, is not enough to allow this Tribunal to find to the requisite level of satisfaction that the retrenchment was therefore, without more, motivated by Mr Omeri's race. Mr Omeri urged us to so find that it was. He submitted (Exhibit D, paragraph 10):- "… I say that the claims (of the respondent as to the reasons for the retrenchment) amount to nothing more than verbal diarrhoea as an attempt at post-event justification of their unlawful action and therefore have no merits. Just how did Mr Searle give regard to "other factors such as the employee's range of other skills and abilities and performance including workplace behaviour? Or did he prefer auditors who played rugby and enjoyed vegemite? Even so, without an appraisal and with so little contact with me, how did he know that I did not play rugby and enjoy vegemite? Do these "other factors" include race, religion, cultural heritage and ethnic origin?" 40 Stirring though Mr Omeri's words may be, they do not make up for the fact that he needs to prove causation in the sense that the reason, or one of the reasons, for the treatment given to him was his race. There is no evidence of that at all. In particular, there is no evidence that Mr Stuart said the offensive words attributed to him, nor is there evidence of Mr Latif's treatment (even if that issue were relevant for this matter). 41 An otherwise inexplicable event may give rise to a suspicion that there may be some unlawful discrimination at work, but Mr Omeri's retrenchment was not inexplicable. While inferences may be drawn from primary facts where there is no direct evidence of discrimination, there must be a proper inference able to be drawn from those facts (see Fenwick v. Beveridge Building Products (1985) 62 ALR 275). The complaints against Mr Omeri, as well as the corporate need to restructure, are two reasons which are objectively ascertainable as reasons for retrenchment. In the light of other, reasonable explanations for the retrenchment, Mr Omeri's suspicions do not elevate the main primary fact in his favour – the numerous explanations – into a basis for a finding of a breach of the Act.. The onus is on him to prove that he has suffered unlawful discrimination, and that onus has not been discharged. The test is an objective one, and he must show that the probability was that there was unlawful discrimination, not merely a possibility of discrimination. The applicant has pointed to no more than a possiblity. 42 Accordingly, the application should be dismissed. Costs 43 The respondent seeks an order for costs. The usual rule is that no costs are awarded in Equal Opportunity matters – s 114, Anti-Discrimination Act. The rule may be varied where there are "circumstances that justify (the Tribunal) doing so" (sub-s 2). 44 The respondent submits that this is a special case. Counsel for the respondent points to decisions such as Harding v. Vice-Chancellor, University of New South Wales [2002] NSWADTAP 36 where the conduct of the applicant, in pursuing matters which had been pointed out to her by the Tribunal as being doomed to failure, resulted in an order for costs (see paras 24 and 25 of the decision). 45 Practice Note 12 (14 March 2003) is also relevant. The special circumstances which are outlined in that Note include:- a) whether a party has conducted the proceeding in a way that disadvantaged another party … b) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law". 46 In the decision on the s 111 application, the Tribunal said (paras 21 and 22):- "Here, the objective facts are that Mr Omeri was made redundant, and that varying explanations were given for this action. No explanation was proffered in writing or orally by the respondent, although the discriminatory conduct was denied. There is some slight indication (the second-hand hearsay from the unnamed person, currently in inadmissible form) that Mr Stuart admitted to a racial or ethno-religious reason for the redundancy. There is no evidence that the comment, if made, was an operative factor in the retrenchment. However, the facts at their highest show that there may be grounds on which to decide that the complaint is substantiated. The varying explanations for the redundancy may point to a hidden agenda within QAS and the failure by the respondent to point to a particular reason does not assist the Tribunal in dispelling this suspicion. Although the objective evidence is not strongly in favour of a finding of discriminatory conduct, there is sufficient before the Tribunal to allow this matter to proceed to a hearing." 47 While Mr Omeri has failed in his claim, merely bringing an application to the Tribunal is not sufficient to ground an order for costs. While the applicant's case was not strong, it was not until the hearing of these proceedings that the respondent brought evidence of the reasons for retrenchment. The Tribunal has found that those reasons were not motivated by discrimination. Something more than merely a strong case in the respondent is needed for an order for costs. Accordingly, there is no need to stray from the usual order, that is, no order as to the costs of the proceedings. Revised 11 October 2004: Sentence One of Paragraph One amended to correct error.