CITATION: Laalaa v DG NSW Dept of Education and Training [2008] NSWADT 327 DIVISION: Equal Opportunity Division APPLICANT Ahmad Laalaa PARTIES: RESPONDENT Director General, NSW Department of Education and Training FILE NUMBER: 071072 HEARING DATES: 7 January 2008, 17 and 18 April 2008 SUBMISSIONS CLOSED: 30 June 2008 DATE OF DECISION: 8 December 2008 BEFORE: Hennessy N - Magistrate (Deputy President); Hayes E - Non-Judicial Member; Schembri A - Non-Judicial Member CATCHWORDS: Application for damages in relation to complaints of race discrimination and victimisation Anti-Discrimination Act 1977 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Commissioner of Police, NSW Police Service v Estate of Russell [2002] 55 NSWLR 232 Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 CASES CITED: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Purvis v New South Wales (2003) 217 CLR 92 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 APPLICANT In person REPRESENTATION: RESPONDENT P Griffin, barrister L Watson, solicitor The complaints of race discrimination relating to the conduct of Mr Tsiakoulas are not substantiated and are dismissed. 2. The complaints of race discrimination relating to the conduct of Mr Rousselis are not substantiated and are dismissed. 3. The complaint of race discrimination relating to Ms Willmott's conduct during the meeting of 2 February 2007 and the phone conversation of 8 February 2007 is not substantiated and is dismissed. ORDERS: 4. The complaint of race discrimination in relation to the PEAT assessment and the assessment for exemption from the PEAT is not substantiated and is dismissed. 5. The complaints of race discrimination in relation to the attendance at the second interview and the declination of the applicant's application for employment are not substantiated and are dismissed. 6. The complaint of victimisation in relation to not being offered employment on the basis of allegations of discrimination in an email dated 2 February 2007 is not substantiated and is dismissed. 7. The complaint of victimisation in relation to not being offered employment on the basis of the allegations of discrimination in an email dated 11 December 2006 is not substantiated and is dismissed. REASONS FOR DECISION INTRODUCTION 1 Mr Laalaa completed an undergraduate degree in his home country, Lebanon. In 2006 he accepted a one year scholarship provided by the Department of Education and Training to complete a Graduate Diploma of Education at the Australian Catholic University. Mr Laalaa elected to train as a teacher of mathematics, engineering and industrial technology. He signed a Deed of Agreement on 24 February 2006. During the year he participated in practical teacher training at East Hills Boys Technology High School. He then attended an interview in September 2006 to assess his suitability to be a teacher and was recommended for employment. The Department required him to complete the Professional English Assessment for Teachers (PEAT). He complained about that requirement and was offered the opportunity to be assessed to determine whether he should be exempt from the PEAT. He was ultimately assessed as exempt. Following a series of abusive emails to Departmental officers and a further independent assessment of his suitability to be a teacher, the Department declined to offer him employment. 2 Mr Laalaa alleges that the Department has discriminated against him on the ground of his race (Lebanese Muslim) and victimised him in breach of the Anti-Discrimination Act 1977 (AD Act). The Department denies that is has breached the AD Act. We have decided that the Department has not discriminated against or victimised Mr Laalaa and we have dismissed his complaints. FEATURES OF THE HEARING 3 There were several unusual features of this hearing which need to be recorded. Over Mr Laalaa's objection, the Tribunal gave the Department leave to be legally represented: Laalaa v Director General, NSW Department of Education and Training, unreported, 22 November 2007. Mr Laalaa's application for his name to be suppressed was refused, but at his request, the Tribunal agreed not to publish the written reasons for decision on the internet. 4 The first day of hearing was 7 January 2008. The hearing was set down on that date at Mr Laalaa's request because he was planning to move away from Sydney and did not want to have to meet the expense of returning for a hearing. We agreed to that course of action on the understanding that the Department would not be asked to respond to Mr Laalaa's complaints until he had presented his evidence. The Department did not finish cross-examining Mr Laalaa on that day. The matter was then listed for further hearing on 17 and 18 April 2008. The Department decided to forego completing its cross examination of Mr Laalaa because of lack of time and in circumstances where the Tribunal indicated that it was unlikely that we would be assisted by any further cross-examination. 5 Following the hearing the Tribunal made directions as to the filing and service of written submissions. An opportunity was given for Mr Laalaa to file submissions by 23 May 2008 and for the Department to respond within a further 21 days. Following receipt of these submissions Mr Laalaa purported to provide a further written response even though we had made no direction to do so. That response also contained a CDRom. The Department objected to the provision of these submissions and the further evidence. Although the Registrar wrote to Mr Laalaa on 30 June 2008 saying the Tribunal would not take into account his further submissions, we have decided to take those submissions into account but only to the extent that they deal with submissions from the Department about which Mr Laalaa was not on notice when he prepared his first set of submissions. We have not taken into account the material on the CDRom. Our reasons are set out below. 6 Mr Laalaa applied to the Tribunal for a certificate under s 128 of the Evidence Act 1995. That provision obliges the Tribunal, in certain circumstances, to give a witness a certificate preventing self-incriminating evidence from being used against the person in criminal proceedings. Despite the fact that the Tribunal is not bound by the rules of evidence, s 128 applies to evidence given in proceedings before the Tribunal: ADT Act, s 73A. Mr Laalaa provided the Tribunal with a written legal advice that he had obtained entitled "Overview of the law of recording conversations". The Tribunal explained to Mr Laalaa that if he wanted to provide that document to the Tribunal he would be deemed to have waived any entitlement he may have had to claim legal professional privilege over the communication. Mr Laalaa elected to provide a copy of the advice to the Tribunal and the Department. When asked to identify the evidence he intended to adduce, Mr Laalaa referred the Tribunal to page 12 of his submission entitled, "My comments on DET statements". It appears from that page that Mr Laalaa may have recorded a conversation or conversations between himself and DET staff, although he does not say specifically which conversations he recorded or who was a party to those conversations. The passages at page 12 suggest that Mr Laalaa recorded a conversation or conversations with Ms Willmott and submitted that Ms Willmott had consented, by implication, to their conversation being recorded. 7 The Tribunal explained to Mr Laalaa that his application for a certificate under s 128 of the Evidence Act was premature because he had neither attempted to tender any evidence, nor had he objected to giving particular evidence, as envisaged by s 128. We explained that, depending on the circumstances in which any recording of a conversation had been obtained, there may have been a breach of the Listening Devices Act 1984. Without more detailed information, it was not possible for the Tribunal to determine that issue. Mr Laalaa refused to elaborate on the circumstances in which any conversations were recorded and refused to adduce any evidence of a recorded conversation. Furthermore, he did not object to giving any particular evidence on the ground that the evidence may tend to incriminate him. In those circumstances, the Tribunal did not give Mr Laalaa a certificate under s 128 of the Evidence Act 1995, nor did we accept the CDRom into evidence when Mr Laalaa attempted to file it after the hearing. ABUSE OF PROCESS 8 The Department applied for the complaints to be dismissed as an abuse of process. The basis for that application was that Mr Laalaa wrote an email to Ms Willmott on 22 November 2007 in which he foreshadowed that he intended to withdraw his application. He wrote a further email to Ms Watson, solicitor for the Department, on 8 April 2008. Mr Laalaa was cross examined on the content of these emails during the hearing, however as the Department's witnesses were interposed before Mr Laalaa's cross examination had been completed, counsel for the Department overlooked the fact that he intended to tender those emails. Copies were provided soon after the hearing and we accepted the emails into evidence over Mr Laalaa's objection. 9 Mr Laalaa objected to the Tribunal taking the emails into account saying that it was irrelevant and he was not present to comment on them. In our view the parts of the emails that we have highlighted below are relevant to Mr Laalaa's credit and to his bona fides in bringing the complaint. He was given the opportunity to comment on the content of the emails during the hearing so no issue of breach of procedural fairness arises. 10 The 22 November 2007 email says, in part, "Thank you for your cooperation as you were a very nice person since I met you the first time at the Department in Blacktown." Mr Laalaa says that he was being sarcastic when he wrote that Ms Willmott was a very nice person. The email as a whole is conciliatory and philosophical in tone. Nevertheless, Mr Laalaa exhibited sarcasm during the hearing and we accept that it was intended as a sarcastic comment. The email from Mr Laalaa to Ms Watson dated 8 April 2008 is headed "Without prejudice and without admission". We have not taken into account those parts of the email which make an offer of settlement. However, the email concludes with the following observation: Even if I lose the case at the Tribunal, I will not be ending up paying any cost which is not the case for the Department. So, the worst case scenario for me is to remain teaching in the same private college or to teach with other Education Departments and to sue the NSW Education Department for FRAUD. If the Department wins the matter, the Department has still to pay at least to Mr Griffin minimum of 20k that can be avoided by the settlement plan. 11 In cross-examination it was suggested to Mr Laalaa that he had nothing to lose by pursuing this litigation. Mr Laalaa said that a solicitor dictated this email and that it contained that person's opinion, not his own. Mr Laalaa says that the solicitor had advised him that the Department could not rely on the email as it had been written "without prejudice". 12 The Tribunal may dismiss a complaint if it is, among other things, frivolous, vexatious, misconceived or lacking in substance: AD Act, s 102 and s 92. On the basis of the passages in correspondence set out above, it is apparent that the Department regarded Mr Laalaa's complaints as vexatious. That term includes proceedings that are instituted with the intention of annoying, harassing or embarrassing the respondent: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at 129 per Barwick CJ. The power to dismiss a proceedings as vexatious should be exercised cautiously and sparingly. While there is evidence that Mr Laalaa believed that he had nothing to lose by continuing with the proceedings, the evidence does not support a finding that a reason for bringing the complaint was to annoy or harass the Department. Mr Laalaa appears to have an honest view that his complaints have merit. We decline to summarily dismiss the complaints. SUMMARY OF COMPLAINTS 13 Allegations against Mr Tsiakoulas. At the end of February 2006, Mr Laalaa commenced studying at the Australian Catholic University (Strathfield Campus). He did a practicum at East Hills Boys Technology High School commencing in March or April 2006 for one day a week and then did a four week block placement. He alleges that during the course of his practicum his supervisor, Mr Tsiakoulas, questioned him and made comments about his racial background. He also alleges that Mr Tsiakoulas made him sign a form which resulted in a student being dismissed. 14 Allegations against Mr Rousselis. Mr Laalaa alleges that towards the end of October 2006 Mr Alex Rousselis, a fellow student who also did a practicum at East Hills Boys, ridiculed and humiliated him. Mr Laalaa said that Mr Tsiakoulas and Mr Rousselis became intimate friends and that he noticed that Mr Rousselis became sarcastic and racist towards him as he knew a lot of information about him through the school and Mr Tsiakoulas. 15 Allegations against Department about PEAT. The Department advised Mr Laalaa in writing on 5 April 2006 that he would be required to do the Professional English Assessment for Teachers (PEAT). After several complaints about this requirement, the Department allowed Mr Laalaa to be assessed to determine whether he should be exempt from the PEAT. Ultimately he was assessed and found to be exempt from the requirement. Mr Laalaa complains the requirements imposed on him constitute race discrimination. 16 Allegations against Department's refusal to employ him. On 25 January 2007 Peter Johnson, Director of Staffing Services, engaged Mr Fahey to undertake an assessment of Mr Laalaa's English language proficiency and requested that he also undertake a review of his application for employment as a teacher. Mr Fahey is a consultant having spent 30 years as a teacher and senior administration manager for the Department. His recommendation was that Mr Laalaa not be employed as a teacher. Ms Willmott supported that recommendation and Mr Johnson made the ultimate decision not to employ Mr Laalaa. Mr Laalaa alleges that the decision constitutes race discrimination and victimisation. 17 Allegations against conduct of Ms Willmott. Mr Laalaa also complains that Ms Willmott discriminated against him on the ground of his race in a meeting on 2 February 2007 and in a subsequent telephone conversation on 8 February 2007. UNLAWFUL RACE DISCRIMINATION 18 In relation to the complaints of race discrimination, the relevant provisions are s 8 and s 7 of the AD Act. Section 8 of the AD Act makes it unlawful for an employer to discriminate against a person or an employee on the ground of race in certain circumstances: (1) It is unlawful for an employer to discriminate against a person on the ground of race: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) 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. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household. 19 Race is defined in s 4: "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin. 20 Discrimination on the ground of race is defined in s 7: (1) 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, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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) 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. 21 Mr Laalaa relied both on direct discrimination as defined in s 7(1)(a) and indirect discrimination as defined in s 7(1)(c). In relation to one allegation he also relied on s 7(1)(b)- segregation. ALLEGATIONS AGAINST Mr TSIAKOULAS Issues 22 The issues in relation to the allegations against Mr Tsiakoulas are as follows: 1. Did the alleged incidents occur? 2. If so, do the incidents fall within an area of public life covered by s 8 of the Act? 3. If so, do the incidents amount to discrimination on the ground of race as defined in s 7? Did the alleged incidents occur? 23 Questioning and comments. Mr Laalaa alleged that on his first day of practicum Mr Tsiakoulas, his supervisor at East Hills Boys said, "What's your background? You are an Arab, go and teach at Malek Fahd School. Are Egyptian people Arabs? Because there are Egyptian teachers in the school who deny this." On other occasions Mr Laalaa said that Mr Tsiakoulas asked him what he thought of Bin Laden, what his attitude was to the Middle East and Israel and whether he wanted to wipe Israel off the map. He also said that Mr Tsiakoulas asked him to change his religion to a more peaceful one. Mr Laalaa made further allegations that Mr Tsiakoulas made comments or asked questions in a similar vein. Mr Laalaa says he knew then that Mr Tsiakoulas was Jewish, an Israeli and a Zionist. 24 Mr Tsiakoulas denies asking the questions or making the statements Mr Laalaa says he made. Mr Tsiakoulas denies ever saying that he was Jewish. He says that in response to a question Mr Laalaa asked him one day after class he told him that he was an Australian with a Greek background and that his religion was Greek Orthodox. Mr Tsiakoulas said that he had discussions with Mr Laalaa about common interests such as food and music and that they talked about cultural similarities and differences. He says that at the end of his practicum Mr Laalaa specifically thanked the mathematics staff for treating him so well. Mr Tsiakoulas also said Mr Laalaa bought him a bottle of wine and bought the staff Greek sweets which were consumed on his last day. Mr Brooks, Principal of East Hills Boys, gave evidence that he was not aware of any racist statements having been made by Mr Tsiakoulas and that Mr Laalaa did not report or complain to him about any such statements. 25 Credit. Having read Mr Laalaa's submissions and listened to his oral evidence and cross-examination of witnesses, we are of the view that he is inclined to exaggerate, misinterpret and embellish events. One of many examples of this behaviour is Mr Laalaa's alleged conversation with two ASIO (Australian Security Intelligence Organisation) officers at the end of July 2006. He believes that staff at East Hills Boys referred him to ASIO because one of the duties of public schools is to recruit spy agents. He said that the ASIO officers asked him similar questions to those that Mr Tsiakoulas had asked him about his racial background and Lebanon. Mr Brooks, the Principal at the time, said that he has never communicated with an ASIO officer nor, to the best of his knowledge, has any member of his staff. He said that East Hills Boys is not a recruiting agency for ASIO. We accept Mr Brooks' evidence which accords with common sense. 26 Findings. We accept that Mr Laalaa and Mr Tsiakoulas discussed various cultural and political issues associated with the Middle East. We are satisfied that they also discussed similarities and differences between their own cultures and religions. However, Mr Laalaa has exaggerated and embellished these conversations. We are not satisfied that Mr Tsiakoulas said, on the first day of the practicum, words to the effect of, "You are an Arab, go and teach at Malek Fahd School." Mr Laalaa completed his practicum at East Hills Boys and was apparently grateful for the supervision that he had been given. It is not credible that Mr Tsiakoulas would have told him to go and teach at another school on his first day. Nor are we satisfied that Mr Tsiakoulas asked Mr Laalaa to change his religion to a more peaceful one. Furthermore, it is not credible that Mr Tsiakoulas, who said he is Greek Orthodox, said or did anything that would give Mr Laalaa the impression that he was Jewish or a Zionist. 27 Discipline incident. Mr Laalaa complained that he was made to complete and sign a form headed "Serious and Unacceptable Behaviour" dated 6 June 2006. The form is reproduced below with the name of the student concerned anonymised: During lesson 5 on Monday 5 June 2006 (student X) was observed to do the following: 1. didn't complete the work on "energy" 2. disturbing others by standing up and calling out 3. ripped up his folder 4. made personal abusive and offensive language to me which translated Fuck your mother Get fucked Piece of shit As this is my first prac, I was shocked by the offensive language that (student X) was using to communicate with his teacher in the classroom 28 Mr Laalaa said that Mr Tsiakoulas forced him to write and sign this form and that the student concerned did not do any of the things mentioned in the form. Mr Laalaa said that Mr Tsiakoulas did not tell him that this was the last warning for that student. Mr Laalaa's conclusion was that Mr Tsiakoulas' aim was to make him sign the form in order to dismiss a student of Lebanese background from the school. Mr Laalaa says that following this incident, the student's mother confronted him in the playground and said that her son did not do the things that he had listed in the form. She complained to him that the school wanted to expel her son and that Mr Tsiakoulas had a history of discrimination and racism against students from Lebanese backgrounds. Mr Laalaa added that he saw all the executive teachers running away in a very sneaky manner when the student's mother approached him. 29 Mr Laalaa contacted the Australian Catholic University on 6 June 2006 reporting difficulties with his placement because of classroom management issues. He said that he had signed a piece of paper in relation to a student and as the student was on a last warning the student was expelled. Mr Laalaa had told the University that he did not know that the student was on a last warning and that the student's mother threatened him in the playground. A representative from the University advised Mr Laalaa that it was not his responsibility to sign any document that would go to parents, rather it was the responsibility of the supervising teacher and/or the principal if they intend to expel a student. 30 Mr Tsiakoulas denied forcing Mr Laalaa to sign the document but agreed that Mr Laalaa had asked him for advice about what to write. He said it was part of his training to understand how student discipline worked and to participate in the process. Mr Tsiakoulas said that it was his understanding that the matter involving student X and his mother was dealt with by the head teacher. Mr Tsiakoulas explained the fact that executive teaching staff were not in the playground with the observation that they were on their way to morning tea in the staff room. 31 Findings. These allegations are another example of Mr Laalaa exaggerating and misinterpreting innocuous events. Evidence of his suspicious tendencies are again apparent in his evidence that the two ASIO agents who allegedly visited him said, "Do you see who is doing problems in the school and who is doing problems here in this country, Mr Laalaa?" He said that this comment was a reference to the discipline incident with the student. In our view, the likelihood of ASIO officers talking to Mr Laalaa about this incident are so remote as to be unbelievable. We are satisfied that Mr Tsiakoulas asked Mr Laalaa to complete the form as part of his training. He assisted him to complete that task but did not force him to sign the form. While we accept Mr Laalaa's evidence that the student's mother approached him in the playground, it is not credible that the executive teachers ran or sneaked away when they saw her. Mr Tsiakoulas' explanation that they were on their way to morning tea is far more likely. An opinion from a University officer whose only source of information was Mr Laalaa is insufficiently reliable to satisfy us that he was not authorised to sign the document in dispute. In any case, whether or not he was authorised to sign that document is not an issue in these proceedings. Do the incidents fall within an area of public life covered by the Act? 32 Need for relationship. Even if Mr Laalaa could prove his allegations, that conduct will not be unlawful unless there is a particular kind of relationship between Mr Laalaa and the Director General of the Department or Mr Tsiakoulas that is covered by the AD Act. Mr Laalaa says that he was either an employee of the Department or a person seeking employment with the Department and that Mr Tsiakoulas' conduct is in breach of s 8(1)(a) or (b) or s 8(2)(a). 33 Was he an employee? There was some dispute as to when Mr Laalaa applied for employment with the Department. In our view, the exact date that Mr Laalaa applied for employment is irrelevant to any issue in dispute. Employment is defined in the AD Act to include "work under a contract for services." In Commissioner of Police, NSW Police Service v Estate of Russell [2002] 55 NSWLR 232 at [87] to [94] Spigelman CJ (Stein JA and Davies A-JA agreeing) held that the term "employee" should not be "confined to situations in which there is a contract of employment . . .". Rather, the term should be interpreted broadly to include doing "work" which is analogous to employment. However, His Honour added that "there must be some element of regularity and permanence to the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". The reference to an employee in the race discrimination provisions can be contrasted with the reference to "workplace participant" in the sexual harassment provisions: s 22B(6). A workplace participant is defined to include a volunteer or unpaid trainee. It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace for both of them. The fact that there is no corresponding provision in the race discrimination provisions suggests that unpaid trainees are not protected by those provisions. Had the legislature intended to cover unpaid trainees such as Mr Laalaa, it would have used the term "workplace participant" in s 8, not the word "employee". 34 The Deed of Agreement that Mr Laalaa signed was not a contract of employment it was a contract between Mr Laalaa (the sponsorship holder) and the State of NSW (Department of Education and Training). It provided that Mr Laalaa accept sponsorship from the Department to undertake an accredited teacher education training program. One of the terms of the Deed was that Mr Laalaa satisfy the Department's recruitment procedures and that he accept an appointment to certain kinds of position. Contrary to Mr Laalaa's submission, he was not an employee of the Department after signing that Agreement. He still needed to satisfy the Department's recruiting procedures. Mr Cordeiro, Senior Program Support Officer, Staffing Services, gave evidence that everyone on a Department funded teaching scholarship is classified as a "future employee" as they are not yet employed. Such people are guaranteed a teaching position on satisfactory completion of the training and meeting all requirements of the Deed of Agreement. In accordance with the scholarship that he had been awarded, Mr Laalaa received two payment summaries for the year ended 2006 and 2007. Mr Cordeiro explained that an employee ID number is created for all scholarship holders for taxation purposes only but is not activated to receive payment of salary as a teacher until the person has successfully completed the scholarship to the required standard and been granted an approval to teach. He said that the Payment Summaries are used solely to comply with reporting obligations to the Australian Tax Office. We accept this evidence and find that Mr Laalaa was never an employee of the Department. 35 Was he an applicant for employment? The relationship between Mr Laalaa and the Department was not one of applicant and potential employer at the time when he was doing his practicum at East Hills Boys. At that time he was training to be a teacher, he was not applying for a position as a teacher. It follows that Mr Laalaa's relationship with the Director General of the Department or with Mr Tsiakoulas at the time he was doing his practicum does not come within s 8 of the AD Act. Nor does it fall into any other area of public life covered by the race discrimination provisions in Part 2 of the AD Act. Do the incidents constitute discrimination on the ground of race? 36 In case this conclusion is incorrect, and Mr Laalaa's treatment does fall within an area of public life covered by the AD Act, we do not consider that the conversations between Mr Tsiakoulas and Mr Laalaa about cultural, political and religious issues, nor directing Mr Laalaa to complete and sign the discipline report constitute race discrimination as defined in s 7. Mr Laalaa said he was a Lebanese Muslim. We accept that being a Lebanese Muslim falls within the definition "race" in s 4 of the AD Act because it is an ethno-religious origin: Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 at [8] to [12]. 37 In order to determine whether Mr Tsiakoulas' conduct constitutes discrimination on the ground of race, as required by s 7, the Tribunal must ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of race: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the manner in which Mr Tsiakoulas treated Mr Laalaa with the way he would have treated another person of a different race in the same or similar circumstances. As there was no actual comparator, the comparison must be made in relation to a hypothetical person of a different race: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. If the comparison produces the conclusion that Mr Laalaa was treated objectively less favourably than a person of another race, it is then necessary to consider the reasons for that different treatment, that is, causation. 38 Differential treatment. The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales (2003) 217 CLR 92 at [231]. That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133.) Consequently, we are unable to determine how a hypothetical comparator would have been treated without first deciding the causation question. 39 Causation. In Purvis v New South Wales (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that the test was: ... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 40 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. Mr Tsiakoulas conversed with Mr Laalaa about his background, culture and religion. He is likely to have had similar conversations with any other student he was supervising if they were from a non-English speaking background. Mr Tsiakoulas did not ask Mr Laalaa to complete and sign the form because of his ethnic origin. He did so because it was a useful task for a student teacher to complete as part of his or her training. We are not satisfied that one of the reasons for Mr Tsiakoulas treating Mr Laalaa in the way that he did was his ethno-religious origin. It follows that we are not satisfied that Mr Tsiakoulas treated or would have treated a person who was not a Lebanese Muslim any differently from the way he treated Mr Laalaa. Conclusion 41 The complaints of race discrimination relating to the conduct of Mr Tsiakoulas are not substantiated and are dismissed. ALLEGATIONS AGAINST MR ROUSSELIS Findings 42 The allegations relating to Mr Rousselis can be dealt with shortly. Mr Rousselis was a fellow student who Mr Laalaa alleged was an intimate friend of Mr Tsiakoulas. Mr Laalaa alleged that Mr Rousselis ridiculed and humiliated him and became sarcastic and racist towards him as he knew a lot of information about him through the school and Mr Tsiakoulas. These allegations are vague and uncorroborated. Mr Rousselis did not give evidence and Mr Tsiakoulas denied having any knowledge of Mr Rousselis. Mr Laalaa has not established that Mr Rousselis said anything to him that was humiliating, racist or sarcastic. Furthermore, Mr Rousselis was not a respondent to the proceedings and there is no relationship between Mr Laalaa and Mr Rousselis which falls within an area of public life covered by the AD Act. While sexual harassment between fellow students is unlawful under 22E(2) there is no provision of the AD Act making racial discrimination or harassment between fellow students unlawful. Conclusion 43 The complaints of race discrimination relating to the conduct of Mr Rousselis are not substantiated and are dismissed. ALLEGATION ABOUT REQUIREMENT TO DO THE PEAT (OR OBTAIN AN EXEMPTION) Background and Issues 44 PEAT stands for Professional English Assessment for Teachers. The assessment is undertaken by the Institute of Languages at the University of New South Wales and applies, at the discretion of the Department, to applicants whose first language is not English, or where the majority of their qualifications have been gained overseas in a country where English is not the main language. Mr Laalaa completed a 3 year undergraduate degree in Lebanon at the University of Balamand. He also did a one year course at the University of NSW which entitled him to a Master of Engineering Science degree. He was studying for his Graduate Diploma of Education in NSW. Consequently, he came within the Department's policy for applicants required to do the PEAT. 45 Initially, the Department wrote to Mr Laalaa advising him that he needed to do the PEAT but following representations by him allowed him to be assessed to determine whether he could be exempted from that requirement. Ultimately he was assessed and exempted. Nevertheless, Mr Laalaa alleges that the initial requirement that he do the PEAT was part of "the arrangements" the Department made for the purpose of determining who should be offered employment and that those arrangements were directly and indirectly discriminatory on the ground of race contrary to s 7(1)(a) and (c). He also alleged that the arrangements resulted in him being segregated and alienated contrary to s 7(1)(b) of the AD Act. His main submissions were that the Department wrongly categorised him an overseas trained teacher and that other States in which he had applied to be a teacher did not require him to do an English language test. 46 The issues in relation to the allegations about PEAT exemption are as follows: 1. Did the alleged incidents occur? 2. If so, do the incidents fall within an area of public life covered by s 8 the AD Act? 3. If so, do the incidents amount to direct or indirect discrimination or segregation on the ground of race contrary to s 7? Did the alleged incidents occur? 47 In October 2005 Mr Laalaa was sent an information package entitled "Teacher Education Scholarship Program Information Package" together with an application form for a Teacher Education Scholarship. The information packages stated, at p 7, that: Your employment as a teacher is dependent on your demonstrating English language proficiency. If your first language is not English, or where the majority of your qualifications have been gained overseas in a country where English is not the main language, you may be required by NSW DET to undertake Professional English Assessment for Teachers (PEAT). 48 In addition, Clause 3(iii) of the Deed of Agreement signed by Mr Laalaa states that he must: . . . demonstrate proficiency in the English language at the times nominated and to a level nominated by NSW DET if and when the sponsorship holder is so advised by NSW DET. 49 Mr Laalaa said that he did not know when he signed the Deed of Agreement that he would have to do the PEAT. While he was not advised specifically that he would be required to do the PEAT, the Information Package set out the policy which applies to his circumstances. 50 On 5 April 2006 Ms Adebiyi, Manager, Teacher Recruitment Programs, wrote to Mr Laalaa saying, among other things: As indicated in your Deed of Agreement, you may be required to undertake an assessment of your English language proficiency as a requirement to teach in a New South Wales public school. Overseas trained teachers who have completed the major part of their qualifications used for teaching purposes in a country where English is not the main language are required to undertake an assessment of their English language skills. As this applies in your case, you now need to undertake an assessment of your English language proficiency to determine your eligibility for approval as a teacher. The New South Wales Department of Education and Training, in conjunction with the University of New South Wales Institute of Languages, has developed a Professional English Assessment for Teachers (PEAT). PEAT assesses the four skills areas of reading, writing, listening and speaking. To be eligible for employment, you will be required to attain a result of band A each of the four skills areas. . . . To book your Professional English Assessment for Teachers, please call (phone number) 51 Ms Adebiyi said that this letter was a standard form sent to all scholarship holders in their final year of study. She said that the PEAT was required of him and all other applicants who had undertaken the majority of the qualifications required to be a teacher in a country where English was not the first language. Ms Adebiyi's view was that as Mr Laalaa had undertaken three years of the four years of study assessed for the purpose of being approved for employment as a teacher in Lebanon and because he did not have substantial experience teaching in Australia or another English-speaking country it was standard Departmental practice to require him to undertake the PEAT. 52 Mr Laalaa says he was in a panic when he received the letter of 5 April 2006 because he was afraid that if he failed PEAT he would lose his job as a teacher with the Department and have to pay back the scholarship money. Mr Laalaa's feeling of panic was manifested in numerous emails, phone calls and correspondence with the Department following receipt of this letter. We summarise details of some of those communications below: 10/4/06: Mr Laalaa writes to Ms Adebiyi requesting an exemption from PEAT and providing information as to his English proficiency in support of that application. 19/5/06: Department writes to Mr Laalaa saying that he will have to successfully complete the PEAT before a letter of approval to teach can be granted or alternatively provide evidence to justify an exemption from PEAT. 30/5/06: phone conversation between Mr Laalaa and Ms Kerrie Redfern from the Department in which Ms Redfern alleges that Mr Laalaa complained about the letter from Ms Adebiyi saying that it was "bull shit" and that he had been mucked around so much. 30/5/06: phone conversation between Mr Laalaa and Ms Adebiyi in which she offers Mr Laalaa the opportunity to undertake a PEAT exemption assessment despite the fact that he was not eligible for such an exemption. 31/5/06: email from Mr Laalaa to Ms Adebiyi advising that he feels discriminated against by the Department. 31/5/06: Ms Adebiyi seeks a second opinion from Ms Annie Hollander, Assistant Director Staffing Services, in relation to Mr Laalaa's eligibility for exemption from PEAT. 31/5/06: Mr Walter Figallo, an officer in the Teacher Recruitment Unit, assesses Mr Laalaa's qualifications and confirms that the PEAT is required. 5/9/06: Mr Laalaa attends Graduate Recruitment or "Suitability" interview. One assessor indicates that Mr Laalaa has full professional proficiency in English while the other assessor indicates that he does not. Neither assessor recommends that Mr Laalaa undertake PEAT. The assessors recommend Mr Laalaa as suitable for employment. 27/11/06: Mr Laalaa is advised by phone that he could sit the PEAT exemption assessment or choose not to teach with the Department and repay the scholarship money. He agrees to undertake the exemption assessment and an appointment is made for 30 November. 30/11/06: Mr Laalaa attends PEAT exemption interview conducted by Mr Warren Fahey. He raises issues not related to the PEAT assessment and demands a written statement that he would not get a job if he does not do the PEAT. After half an hour Mr Laalaa indicates that he does not want to continue and the interview is terminated. 4/12/06: letter from Department to Mr Laalaa advising him that he has a final opportunity to undertake an exemption assessment from the PEAT and he should ring to book a time. 21/1/07: letter from Mr Laalaa to Department advising he is leaving Sydney permanently to take up a teaching position in another state. 22/1/07: letter to Mr Laalaa from Department saying he has not done the PEAT assessment or participated in the PEAT exemption interview and that he has breached the Deed of Agreement. 24/1/07: email from Mr Laalaa to Department saying he is returning to Sydney and requesting that a PEAT exemption assessment be organised for the following day, 25 January. 25/1/07: Mr Fahey appointed to undertake a review of Mr Laalaa's English language proficiency and his application for employment as a teacher. 25/1/07: Mr Fahey interviews Mr Laalaa, assesses his English language proficiency and advises him that he is recommending that he be exempted from the PEAT. 25/1/07: Department receives Mr Laalaa's PEAT exemption results from Mr Fahey recommending that he be exempted from the PEAT. 6/2/07: letter from Ms Veronica Willmott to Mr Laalaa advising that Mr Fahey has assessed his proficiency in reading, writing, listening and speaking English as satisfactory and recommended that he be exempted from undertaking PEAT. 53 Although Mr Laalaa was initially required to do the PEAT, that requirement was postponed and he was advised that he could be assessed to determine whether he had to sit the PEAT. Ultimately he was assessed as being exempt from the PEAT. Mr Laalaa said that all that the Deed of Agreement required of him was that he demonstrate his proficiency in English. He submitted that the assessors at the suitability interview on 5 September 2006 recommended him for employment taking into account his English language proficiency. Ms Adebiyi's evidence was that when the two assessors look at the applicant's proficiency in English, it is for the purpose of ensuring that applicants who are not required by Departmental policy to do the PEAT are nevertheless assessed in relation to their language proficiency. We accept that evidence which is in accordance with the information provided to Mr Laalaa in the Information Package in October 2005 and with subsequent correspondence. Do the incidents fall within an area of public life covered by the AD Act? 54 We are satisfied that initially requiring Mr Laalaa to be do the PEAT and then to be assessed for exemption from PEAT are arrangements the Department made for the purpose of determining whether he should be offered employment: s 8(1)(a). Do the incidents amount to segregation or direct or indirect discrimination on the ground of race? 55 Segregation. Mr Laalaa alleged that classifying him as an overseas trained teacher amounts to segregating him from persons of a different race. He submitted that he had been wrongly classified as an overseas trained teacher and pointed to a brochure entitled "Your Teaching Career in New South Wales Public Schools. Information for overseas trained teachers." That brochure says, in part: If English is not your main language, or if you have obtained the majority of your qualifications assessed for teaching in a country where English is not the main language, you will be required to undertake an English language proficiency assessment. This assessment will take place once your qualifications are found to be satisfactory. . . . Demonstrating full professional proficiency in all aspects of English is a requirement to gain an approval to teach. If you have taught elsewhere in Australia or in another English-speaking country, you may be eligible for an exemption from the English assessment. 56 There was no evidence that the Department sent this brochure to Mr Laalaa. In any case, it did not apply to him because he was not an overseas trained teacher. We accept Ms Adebiyi's evidence that the term overseas trained teacher refers to people with teaching qualifications from a higher education institution recognised by the Department. The term does not apply to people who are trained to be teachers in Australia. Ms Adebiyi acknowledged that Mr Laalaa was referred to an overseas trained teacher in some pro forma correspondence from the Department but says that in the letters that she wrote to him personally, she did not use that term. We find that the Department did not classify Mr Laalaa as an overseas trained teacher even though some pro forma correspondence to him used that term. Even if he was classified as an overseas trained teacher, that classification does not amount to segregation. The ordinary meaning of segregate is to "separate or set apart from the others or from the main body; isolate" (Macquarie Dictionary, 3rd edition, Macquarie Library). The Department did not segregate Mr Laalaa from people of a different race. 57 Direct discrimination. Mr Laalaa submitted that requiring him to do the PEAT and later requiring him to be assessed for exemption for PEAT were directly discriminatory on the ground of race. The differential treatment element of direct discrimination requires a comparison to be made between the manner in which Mr Laalaa was treated with the manner in which the Department treated or would have treated another person of a different race in the same or similar circumstances. Mr Laalaa contended that other Australian State governments had exempted him from English language assessment as a pre-requisite to teaching in those States. However, the comparison is not between how the Department treated Mr Laalaa and how a Department in another State treated or would have treated him. Consequently, any evidence as to how he was treated in another State is irrelevant. Mr Laalaa also sought to compare himself with Mr Rousselis who is of Greek background. Mr Rousselis obtained his qualifications at Charles Sturt University. Consequently his circumstances were not the same (or not materially different) from Mr Laalaa's circumstances as required by s 7(1)(a) and he is not a valid comparator. 58 Causation. The reason Mr Laalaa was advised in April 2006 that he had to do the PEAT was because his circumstances came within the Department's policy. That policy was that if the person's first language was not English and the majority of their qualifications were gained in a non-English speaking country, the Department has a discretion to require the person to undergo the PEAT. Mr Laalaa relied on an opinion of Mr John Murn, an officer of the Department, who wrote an email to Mr Peter Johnson on 16 January 2007 expressing the view that some years ago he was concerned about the way in which the Department determined who should do the PEAT and said that "it seemed discriminatory". Mr Murn's email makes it clear that he was not making any judgement about whether the Department had breached the AD Act in this case. More significantly, the Tribunal is not bound to adopt Mr Murn's opinion even if a relevant opinion had been given. In our view the initial requirement to do the PEAT was not based on race but on the where Mr Laalaa had obtained his qualifications. Ultimately he was not required to do the PEAT. Rather, he was assessed to determine whether he was exempt from the PEAT. Although he was not eligible for the exemption assessment, the Department allowed him to undergo that assessment. The reason the Department made that decision was because of his complaints about being required to do the PEAT. His race was not a reason for that decision. 59 Indirect discrimination. Mr Laalaa's submission was that: a) the Department imposed a requirement on him to do the PEAT and later to be assessed to see if he was exempt; b) he does not or is not able to comply with those requirements; c) a substantially higher proportion of people not of his race can comply with those requirements; and d) the requirements are not reasonable in all the circumstances. 60 We agree that the Department imposed these requirements on Mr Laalaa. We find that a substantially higher proportion of people not of Lebanese/Muslim background can comply with those requirements compared with people from that background. That is because people not of a Lebanese/Muslim background are more likely to have undertaken the majority of their studies in an English speaking country. 61 The final question is whether the requirements were reasonable in all the circumstances. Reasonableness is a question of fact that Mr Laalaa has the onus of proving. We are required to balance the nature and extent of the discriminatory effect of the requirements against other relevant factors which, in this case, include whether the requirements are appropriate and adapted to their purpose, have a logical and understandable basis and whether there is a less discriminatory option. It is reasonable for the Department to take steps to ensure that every person who is offered a teaching position in New South Wales is sufficiently proficient in English. The policy that has been developed to ensure that that is the case is appropriate and adapted to its purpose and has a logical and understandable basis. Mr Laalaa did not suggest a less discriminatory option apart from not subjecting him to any assessment at all. Given that Mr Laalaa had obtained the majority of the qualifications required to be a teacher in a country where English is not the first language, requiring him to be tested to assess his English proficiency was reasonable. Conclusion The complaint of race discrimination in relation to the PEAT assessment and the assessment for exemption from the PEAT is not substantiated and is dismissed. REFUSAL OF EMPLOYMENT Background 62 Mr Laalaa complained that he was either dismissed from employment or refused employment on the ground of his race. We have found that Mr Laalaa was not an employee of the Department when he signed the Deed of Agreement, so he cannot have been dismissed from employment. Rather, he was refused employment: s 8(1)(b). The remaining issue is whether that refusal constituted direct or indirect race discrimination. We set out below a brief chronology of the relevant events leading up to the Department's decision not to offer Mr Laalaa employment. 5/6/06: Mr Tsiakoulas completes a report following Mr Laalaa's weekly attendances at East Hills Boys saying, in part, "He has demonstrated a very good depth of mathematics. He has improved on his technique to maintain classroom discipline over the weeks. This is a good start and Ahmad can now utilise everything he knows when he starts his 4 week practicum." 5/9/06: Mr Laalaa attends the Graduate Recruitment interview and is recommended as suitable for appointment as a teacher. 28/11/06: Mr Laalaa sends an email to Ms Adebiyi which states, in part, What type of human beings are you??? I'm not gonna do PEAT and if you don't offer a job and don't let me work for the Catholic System, you don't have anyone to blame but yourself for what's gonna happen and I don't have anything to lose. 30/11/06: Mr Laalaa sends an email to Ms Adebiyi saying, in part, I accuse of being Anti-Semitic and if I win this case at court, you'll end up paying millions of dollars. Why? Thanks to the j. . . I'm not the type of person who yields easily. 30/11/06: Mr Laalaa attends an interview with Mr Fahey for exemption from PEAT but the interview concludes without the assessment having occurred. 4/12/06: letter from Mrs Adebiyi to Mr Laalaa referring to his 30/11/06 email and advising, in part, that: Should you wish to avail yourself of one final opportunity to undertake an exemption assessment please telephone (number) to book a time for the assessment. 6/12/06: Mr Tsiakoulas gives Mr Laalaa positive performance appraisal following the completion of his practicum. 11/12/06: Mr Laalaa sends an email to Ms Adebiyi (copy to the Minister) saying, in part: With great confidence and with a very loud voice I say it: FUCK you, because of your racism and DISCRIMINATION!!! And, show me how you're going to claim the money back because I'll never do PEAT. 15/1/06: Mr Laalaa sends another email to Ms Adebiyi (copy to the Minister) saying, in part: Without any doubt, I hate you! I've been exempted from language test and I've been offered a job in another state. I've got the offer if you'd like to see it !!! The employer is expecting me to sign it in a couple of days. Now I can sue you for discrimination IDIOT. You messed up with the wrong person. I've warned you many times. PREPARE for what is coming!!! 16/1/07: Mr Peter Johnson the Director of Staffing Services, writes to Mr Laalaa telling him of "significant concerns regarding the threats in his email of 15 January 2007, particularly those which may be perceived as threats to Ms Adebiyi's personal safety and welfare." 17/1/06: Mr Laalaa sends an email to Mr Johnson, copy to Ms Adebiyi saying, in part, You have serious concern about Mrs Adebiyi's safety and welfare. What about my fucking safety??? But you don't care about all those issues, only the safety of Mrs Adebiyi is what are you concerned about!!! 24/1/06: Mr Laalaa sends and email to Mr Johnson and Ms Adebiyi saying, in part: Look I really apologise if you felt offended somehow by my emails. I didn't mean to. I've been under a lot of pressure. All right. I'll do the exemption process test but can you organise it today Thursday 25th Its UNFAIR what you are doing, you should be able to help me. 25/02/07: Mr Laalaa attends an interview with Mr Warren Fahey, an independent reviewer, to assess his application for employment as a teacher and whether he should be exempted from PEAT. 1/2/07: phone call between Mr Laalaa and Mr Fahey in which Mr Fahey advises that although he has recommended his exemption from PEAT Mr Johnson still has to make a decision about his approval to teach. 1/2/07 at 8:35 p.m. Mr Laalaa forwards an e-mail to the Minister for Education, Mr Johnson, Ms Adebiyi and others saying, in part, Tomorrow, Friday I am coming to the Department of Blacktown to get definite answers to the above questions and I'm not leaving the department until I get them. I regret the minute when I have applied to this bullshit. It is very clear that I've been discriminated by the Department. It is like I am a slave waiting a decision from his majesty the KING of the Department to have his compassion and blessing in order to get this job. 2/2/07: Peter Johnson Director, staffing services decides to decline Mr Laalaa's application and to discontinue any debt recovery action in relation to his scholarship money. 63 Following the interview on 25 January 2007, Mr Fahey summarised the main aspects of Mr Laalaa's application for employment as well as the recent correspondence including emails sent to the Department. His recommendations were as follows: It is submitted that Mr Laalaa is an intelligent young man who appeared at interview to be quite anxious and one who did not always respond intelligently, meticulously and credibly to the questions posed throughout the interview. Mr Laalaa expressed regret at some of his past communications and tried to assure the reviewer that he was not a man prone to violence or threats of any kind especially to departmental offices. Mr Laalaa's proficiency in English has been determined as satisfactory and Mr Laalaa has been recommended for exemption from PEAT. Had Mr Laalaa submitted to PEAT at the University of New South Wales or sought exemption from PEAT then, in all likelihood, his application for employment as a teacher would have been processed in the usual way and not been subject to an independent review. A considerable number of Mr Laalaa's statements in his communications, both verbal and written are inappropriate. Swearing at departmental offices, while not necessarily now being a criminal offence, is unacceptable. Further, Mr Laalaa made statements that caused significant alarm for the safety of at least one officer irrespective of Mr Laalaa's later explanation. There is also evidence that Mr Laalaa has not remained calm in the school environment. It is submitted that, on balance, Mr Laalaa has a propensity to become involved in heated argument and subsequent irrational behaviour. It is also submitted that if the issuing of an approval to teach is being considered to Mr Laalaa that he be referred to HealthQuest in the first instance with a copy of this report to the medical assessor's consideration. Consideration should also be given to asking HealthQuest to refer Mr Laalaa for medical assessment by a consultant psychiatrist. Mr Laalaa has claimed on several occasions that he was being discriminated against on racial grounds by the Department but has not supported his claims with any reasoned argument other than stating that other authorities have regarded his proficiency in English as satisfactory. The reviewer submits that it is of concern that a man of Mr Laalaa's intellect has had a significant record of unacceptable statements in correspondence even following a letter of warning from the Director, Staffing Services. All this does not give the reviewer confidence about Mr Laalaa's teaching future and therefore his suitability for employment. The reviewer submits that if Mr Laalaa were to be granted approval to teach he would more than likely again become involved in a simple dispute with his principal, supervisors, parents, students or colleagues and this in turn would significantly disrupt teaching/learning experiences in the school and the consequent negative impact upon schools supervisors, students, parents and administrators. Accordingly, it is submitted that Mr Laalaa should not be deemed a fit and proper person to be employed in any teaching capacity in the education teaching service. 64 On 2 February 2008, Mr Johnson declined Mr Laalaa's application for employment for the reasons set out in Mr Fahey's report. Direct discrimination 65 Differential treatment. In relation to the differential treatment test, Mr Laalaa sought to compare himself with Mr Rousselis. He said that they were both doing the Graduate Diploma together and that he was not of Lebanese background. The Department advised Mr Rousselis that he was eligible for appointment as a teacher on 4 September 2006, but did not offer him a position at that stage. The comparison must be made "in the same circumstances, or in circumstances which are not materially different." As the High Court said in Purvis v New South Wales (2003) 217 CLR 92, the first step when applying the differential treatment requirement is to identify the objective features or circumstances attending the treatment given to the person. 66 One of the objective features in this case was that Mr Laalaa had sent several abusive and threatening emails to the Department whereas Mr Rousselis had not. This feature is so significant that a valid comparison cannot be made between the treatment of Mr Laalaa and the treatment of Mr Rousselis. Mr Laalaa also compared his conduct in sending what he regards as valid emails to the Department with the conduct and criminal history of various politicians and public servants. He argued that those people still have their positions so it is clear he has been discriminated against on the ground of his race. Other politicians and public servants are not applying for a position as a teacher and their circumstances are not the same or similar to Mr Laalaa's circumstances. 67 Causation. In our view, the reasons set out in Mr Fahey's report are the real reasons for declining Mr Laalaa's application for employment. Mr Laalaa made numerous submissions in relation to the procedural fairness of the decision, whether it was based on accurate factual material and whether it was justified. In particular Mr Laalaa said that Mr Tsiakoulas provided false statements about him to the Department which contradicted the view that he provided in the practicum report. He says that this proves how much discrimination and racism he has encountered. Mr Tsiakoulas denies ever having made false statements about Mr Laalaa's performance as a teacher. He says the comments he made are consistent with the views expressed in the practicum report. In our view the comments that Mr Tsiakoulas made to Mr Fahey were less favourable than the comments he gave in his practicum report. However, that does not demonstrate that the decision to refuse to employ Mr Laalaa was on the ground of his race. Regardless of whether Mr Tsiakoulas gave Mr Laalaa a negative reference, it is abundantly clear that the decision not to offer Mr Laalaa employment was based on the concerns outlined in Mr Fahey's report. Neither those reasons, nor any of Mr Laalaa's criticisms of the decision, support an inference that one of the reasons for the decision was that Mr Laalaa is a Lebanese Muslim. We also find that the same decision would have been made in relation to a hypothetical person who was not of Lebanese/Muslim background in the same or similar circumstances. Indirect discrimination 68 The elements of indirect discrimination are set out above at [59]. Mr Laalaa alleged that the Department had indirectly discriminated against him on the ground of race by requiring him to undergo a second suitability interview when he had previously been assessed as suitable in an interview in September 2006. This allegation does not come within the terms of s 7(1)(c). As there was no evidence that the requirement to attend a second suitability interview was directed to anyone other than Mr Laalaa, it cannot be said, either hypothetically or in reality, that a substantially higher proportion of applicants not of Lebanese/Muslim background could comply with the requirement. Furthermore Mr Laalaa complied with the requirement by attending the second interview. Conclusion 69 The complaints of race discrimination in relation to the attendance at the second interview and the declination of Mr Laalaa's application for employment are not substantiated and are dismissed. ALLEGATIONS AGAINST MS WILLMOTT Background and issues 70 Mr Laalaa also complains that Ms Willmott discriminated against him on the ground of his race in a meeting on 2 February 2007 and in a subsequent telephone conversation on 8 February 2007. Ms Willmott, Senior Manager, Strategic Initiatives and Support, Staffing Services Directorate, is responsible for employment decisions for teaching and non-teaching staff. She said that she considered Mr Fahey's recommendations and, on 1 February 2007, recommended to Mr Johnson that Mr Laalaa's application for employment as a teacher be declined based on the outcome of the independent review and his demonstrated behaviour. 71 The issues are: 1. Did the alleged incidents occur? 2. If so, do the incidents fall within an area of public life covered by s 8 the AD Act ? 3. If so, do the incidents amount to direct discrimination on the ground of race contrary to 7? Did the alleged incidents occur? 72 On 2 February 2007, at the request of Mr Johnson, Ms Willmott met with Mr Laalaa to advise him of the outcome of the review. Ms Willmott was aware of the email that Mr Laalaa had sent to herself and the Minister the previous evening complaining of discrimination and saying that he intended to visit the Department the next day "to get definite answers to the above questions and I'm not leaving the department until I get them." 73 Mr Laalaa's version of this meeting is that Ms Willmott entered the room and started screaming at him saying, "What did you do? How did you write the email to the Minister? You are more qualified. We have discriminated against you. You have to pay for what you did. I'm going to make you pay for what you did. You're never going to be employed by the Department. The Director can appoint anyone as a teacher without qualifications and discharge anyone without a reason. Go and teach somewhere else." He also alleged that she said, "Go and teach in independent schools". He says that she made these comments in a very aggressive tone. Then he says she called the security guard who escorted him from the premises. 74 Ms Willmott made a file note of the meeting she had with Mr Laalaa on 2 February 2007. That note records as follows: At the request of the Director, Staffing Services I met with Mr Laalaa on Friday 2 February 2007 to advise him of the outcome of the review of his application for employment following e-mails Mr Laalaa sent on the evening of Thursday 1st February 2007. . . . I read to Mr Laalaa from the report prepared by Mr Fahey and indicated that the Director Staffing Services had considered the recommendations made by Mr Fahey and that he had been declined for employment as the Department of Education and Training did not have the confidence that he was a fit and proper person to be employed as a teacher in public schools. Mr Laalaa did not understand the reasons for the decision and was insistent that this decision was not right. He needed to be advised repeatedly of the context of the decision, the role of the Director and the decision-making processes. It became necessary to read from the report in an attempt to ensure it was consistent with my advice to him. . . . I had advised Mr Laalaa that the code of conduct prescribed the expectations placed on a Departmental employee and that his recent e-mail communications to Departmental officers combined with the comments from his practicum supervisors did not give the Director the confidence that he should be employed as a teacher. Mr Laalaa asked repeatedly for the reasons why he had been declined. I reiterated the advice that the director considered the outcome of the independent review, comments of his practicum supervisors, his personal suitability demonstrated at interview and made a decision. I asked Mr Laalaa to leave the room as he was distressed and he did not seem to understand what was being advised. I was concerned for my personal safety as he did not believe that the Director had a right to decide to decline his applications and despite my repeated advice he was not demonstrating that he retained or understood the outcome. 75 Ms Willmott gave evidence that at the meeting on 2 February 2007 she had a copy of Mr Laalaa's file. She repeated her version of the meeting as set out in the file note above. Ms Willmott denies that she treated Mr Laalaa in an aggressive manner in front of a security guard and other departmental staff. She said that for privacy reasons she met Mr Laalaa in an interview room and that the security guard was in attendance on the premises and was located in the reception area outside the interview room. She said that she was aware that the advice she was giving to Mr Laalaa was distressing for him however she was very direct when speaking with Mr Laalaa. She said she did not raise her voice nor was she aggressive. 76 Findings. We are not satisfied that Mr Laalaa's version of this meeting is correct. As we have said, he is inclined to exaggerate, misinterpret and embellish events. Ms Willmott has a contemporaneous file note of the meeting and the version she records is both credible and consistent with her explanation at the hearing. We do accept that Ms Willmott made a comment to the effect that the Director has a discretion to appoint or not appoint anyone as a teacher and there is no need for him to disclose reasons for such a decision. We are not satisfied that she said to Mr Laalaa, "Go and teach somewhere else." She is likely to have said words to the effect that he was free to go and teach elsewhere and to re-apply to the Department at some time in the future. 77 Phone call. On 8 February 2007 Mr Laalaa phoned Ms Willmott. He alleges that during that call she made inappropriate comments about his culture and refused to tell him about any appeal process. Mr Laalaa alleges that Ms Willmott said that, in his culture a man does not accept a woman talking to him the way she spoke to him during the meeting with her on 2 February 2007. Mr Laalaa asks rhetorically what his culture has to do with the issue. 78 Ms Willmott's version of this conversation is that Mr Laalaa contacted her to ask about options for him to seek a review of the decision. Mr Laalaa gave her a scenario that if he obtained a job in the Catholic system or the Independent school system could he apply later for employment as a teacher in the government system. Ms Willmott says that she told Mr Laalaa that he was free to pursue employment in a non-government school system and he could reapply to the Department once he had substantial experience in that system. Mr Laalaa insisted that Ms Willmott tell him how many years he would have to wait before a decision to review could be made and what he could do to prove that he should be employed. Ms Willmott said that she indicated that it was too difficult to give a timeframe but that if he obtained teaching experience in another system any review of his employment would be based on this experience. Ms Willmott said that she apologised to Mr Laalaa that the decision to decline his application for employment had distressed him and acknowledged the sensitivity and difficulty of the matter in the context that she understood that receiving this advice from a female might be more difficult for him to cope with. She clarified that evidence in re-examination by saying that she knew that in some cases, regardless of what country a person comes from, it can be difficult to accept that decision from a person in authority, such as herself. Ms Willmott agreed that she indicated to Mr Laalaa during the conversation when he requested advice in terms of his options for employment that he could apply to teach in Independent or Catholic schools in New South Wales. 79 Finding. Ms Willmott acknowledges that she made a comment about the difficulty Mr Laalaa may have in accepting advice from a woman. We are satisfied that she did make a comment to the effect that Mr Laalaa's may have difficulty accepting a decision made by a woman because in his culture it is not usual for women to be in authority and for their decisions to be accepted. Do the incidents fall within an area of public life covered by s 8 the AD Act? 80 For any of Ms Willmott's conduct during the meeting of 2 February 2007 or during the phone call on 8 February 2007 to constitute unlawful conduct under the AD Act it must have occurred in an area of public life covered by that legislation. We have found that Mr Laalaa was never an employee of the Department. Nor was he a person applying for employment on or after 2 February 2007. By that time his application had been rejected. Consequently the incidents complained of do not come with an area of public life covered by the AD Act. Do the incidents amount to direct discrimination on the ground of race? 81 Even if Mr Laalaa was an applicant for employment on or after 2 February 2007, none of the comments Ms Willmott made constitute direct race discrimination. Although she made some comments about his culture and the difficulty he may have had accepting a decision from a woman, that does not constitute a breach of s 7. She did not treat Mr Laalaa any less favourably than she would have treated a person not of Lebanese/Muslim background. Ms Willmott was merely attempting to understand and to explain why Mr Laalaa was having such difficulty accepting the decision not to employ him. Conclusion 82 The complaint of race discrimination relating to Ms Willmott's conduct during the meeting of 2 February 2007 and the phone conversation of 8 February 2007 is not substantiated and is dismissed. VICTIMISATION – REFUSAL TO EMPLOY Background 83 Mr Laalaa also alleged that the decision to refuse to employ him was made as a result of him sending an email to the then Minister for Education (and to Ms Adebiyi, Ms Jordan and Mr Johnson and the Premier) at 8.35 pm on 1 February 2007. The email set out a series of questions and went on to say, in part, as follows: Tomorrow, Friday I am coming to the Department at Blacktown to get definite answers to the above questions and I'm not leaving the department until I get them." I regret the minute when I have applied to this bullshit. I have started the teacher training with far more than 100% motivation and enthusiasm for this profession, now I end up with less than zero because of this process, even I'm rethinking of this career change. It seems to be a wrong decision from the beginning. . . . It is very clear that I've been discriminated by the Department. I wonder the officer who is assessing my application, what qualification does he have??? 100% sure I am more qualified than this officer, more than the director and even more than the minister who is in cold blood reading those e-mails without issuing an investigation case regarding my application. I wonder what are her duties in this department, playing with people's lives??? I wonder how do they get those positions??? It is very clear that I've being discriminated by the Department. It is like I am slave waiting a decision from his Majesty the KING of the Department to have his compassion and blessing in order to get this job people, HAVE MY SINCERE FELICITATIONS FOR MAKING A DIFFERENCE FOR THIS DEPARTMENT!!! Definition of victimisation 84 Section 50 of the AD Act makes victimisation unlawful: (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. 85 In order to prove that the victimisation provision has been breached Mr Laalaa must establish that an operative reason for the decision not to offer him employment was that he alleged that he had been discriminated against in the email to the Minister and others. 86 In support of his case, Mr Laalaa says that Mr Johnson must have changed his mind about employing him after he saw the email to the Minister because Mr Fahey told him in a phone call on 1 February that his application had been successful. On 14 February 2007 Mr Laalaa wrote the following letter to Mr Johnson: On 1st February 2007 during a phone call with Mr Fahey, he informed me that I was successful for the interview, but, when I sent the email on the same day asking the Minister to investigate about discrimination towards my application, people of the department have changed their mind. On the next day I was shocked when Ms Veronica Willmott told me that I was unsuccessful for the same interview during my meeting with her on 2 February 2007 and she continued the meeting by reprimanding me on writing the email to the Minister asking for investigation and she was extremely angry about it. 87 Mr Fahey's evidence was that he told Mr Laalaa after assessing his English language proficiency on 25 January 2007 that he was recommending his exemption from the PEAT. He also says that he told him that a report would be written in relation to his suitability for employment. He added that the report would probably be submitted by 2 February 2007. He signed the report on 31 January 2007 and submitted it to the Department. The report discloses that Ms Willmott discussed the report with Mr Fahey the following day, 1 February 2007. Ms Willmott's evidence is that she recommended that Mr Laalaa's application for employment be declined on that date. That evidence is consistent with the date Ms Willmott signed the report with her recommendation to Mr Johnson. We accept that evidence. In those circumstances, it is not credible that Mr Fahey would have told Mr Laalaa on 1 February that he had been successful at the interview. Mr Fahey was merely the person making recommendations to Departmental officers. It was not his role to advise Mr Laalaa that he was or was not being offered employment. Furthermore the report discloses that Mr Fahey did not recommend Mr Laalaa for employment. 88 Mr Laalaa alleges that during his meeting with Ms Willmott on 2 February she informed him that his application had been declined because he wrote the email on 2 February 2007. Ms Willmott's recommendation to decline Mr Laalaa's application for employment cannot have been made on the basis of the email to the Minister because that email was not sent until 8.35 pm on 1 February. Ms Willmott had already made her recommendation by that time. However, when giving oral evidence Ms Willmott said that one of the reasons Mr Laalaa's application was declined was the email to the Minister. We understand Ms Willmott's evidence to be that the abusive and offensive comments in Mr Laalaa's email were a further justification for declining his employment, not that his allegations of discrimination had prompted her or anyone else to change their mind about whether he should be offered employment. 89 Mr Laalaa put to Ms Willmott in cross-examination that during the meeting on 2 February, she was reading from a "scrapbook" and not from a finalised or proper report. Ms Willmott said that she had Mr Laalaa's file with her during meeting, as well as the letter from Mr Johnson communicating the decision that Mr Laalaa would not be offered employment. She also said that she read very carefully from the statements in Mr Fahey's report. The report was in existence and had been signed by Mr Fahey and Ms Willmott at the time of the meeting on 2 February. It is not credible that Ms Willmott was reading from anything other than the finalised report. Having made those findings, we are not satisfied that a reason for declining Mr Laalaa's application for employment was that he sent an email to the Minister and others at 8.35 pm on 1 February 2007. 90 Mr Laalaa contended that a decision was made by the Department to decline his application before conducting the alleged independent review. In support of that contention, Mr Laalaa referred to an email from Mr John Murn dated 17 January 2007, which said in part "I suggest that he be flagged in whatever is appropriate as not to be employed." This submission is inconsistent with Mr Laalaa's contention that a positive recommendation was changed at the last minute after he sent an email to the Minister. In any case, Ms Willmott is clearly correct when she denies that Mr Murn's suggestion constituted a decision by the Department to decline to employ Mr Laalaa. Conclusion 91 The complaint of victimisation in relation to not being offered employment on the basis of allegations of discrimination in an email dated 2 February 2007 is not substantiated and is dismissed. Further victimisation allegation 92 Mr Laalaa's second victimisation complaint was that because he complained in an email of 11 December 2006 to the Department and the Minister that he had been discriminated against by Mr Tsiakoulas, Mr Fahey contacted Mr Tsiakoulas to ask him about his performance and declined to employ him partly on the basis of Mr Tsiakoulas' opinion. In order to make out this complaint Mr Laalaa has to prove that a reason the Department contacted Mr Tsiakoulas to obtain a reference and/or the reason that his application for employment was declined was because he complained of discrimination in the 11 December email. 93 Section 50 requires that Mr Laalaa be subjected to a "detriment" as a result of having done one or more of the things listed in s 50(1). Contacting Mr Tsiakoulas to ask him for his opinion of Mr Laalaa's performance is not a detriment. It was merely a means by which Mr Fahey sought to obtain further information about Mr Laalaa's fitness for employment. Declining Mr Laalaa's application for employment is a detriment. The only remaining issue is whether a reason for that decision was because Mr Laalaa complained about discrimination in the email. 94 The email dated 11 December 2006 was addressed to Ms Adebiyi, Ms Jordan and the Minister and said, in part: With great confidence and with a very loud voice I say it: FUCK you, because of your RACISM & DISCRIMINATION!!! And, show me how you're going to claim the money back because I'll never do PEAT. . . . Not only this, I've experienced teaching in a state school in my first prac. Sincerely, it's a big disgrace to work in government schools because of level of racism & corruption. When I've started my practicum in East Hills Boys High School in Panania, the crew over there always put in a situation where I had to defend myself just because of my ethnic & religious background & I had to answer questions like what I think of Bin laden, war in the middle east, terrorism linked to islam & if I can change my religion to a more peaceful one and even my name etc . . . . In other words, state schools are rubbish & the greatest proof is they (DET) have employed a person like you Mrs Adebiyi a RACIST!!! 95 Mr Fahey referred to the email of 11 December 2006 in his report. The content of the email was one of the reasons Mr Laalaa's application for employment was declined. However, Mr Fahey's concern was not the fact that Mr Laalaa had complained of discrimination, but rather the abusive and insulting language in the email. In our view, the fact that Mr Laalaa complained of discrimination on 11 December was not one of the reasons his application for employment was declined. Conclusion 96 The complaint of victimisation in relation to not being offered employment on the basis of the allegations of discrimination in an email dated 11 December 2006 is not substantiated and is dismissed. Orders 1. The complaints of race discrimination relating to the conduct of Mr Tsiakoulas are not substantiated and are dismissed. 2. The complaints of race discrimination relating to the conduct of Mr Rousselis are not substantiated and are dismissed. 3. The complaint of race discrimination relating to Ms Willmott's conduct during the meeting of 2 February 2007 and the phone conversation of 8 February 2007 is not substantiated and is dismissed. 4. The complaint of race discrimination in relation to the PEAT assessment and the assessment for exemption from the PEAT is not substantiated and is dismissed. 5. The complaints of race discrimination in relation to the attendance at the second interview and the declination of the applicant's application for employment are not substantiated and are dismissed. 6. The complaint of victimisation in relation to not being offered employment on the basis of allegations of discrimination in an email dated 2 February 2007 is not substantiated and is dismissed. 7. The complaint of victimisation in relation to not being offered employment on the basis of the allegations of discrimination in an email dated 11 December 2006 is not substantiated and is dismissed. 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.