Thompson v Rail Corporation New South Wales [2008] NSWADT 111

CITATION: Thompson v Rail Corporation New South Wales [2008] NSWADT 111

DIVISION: Equal Opportunity Division

APPLICANT Bruce Thompson PARTIES: RESPONDENT Rail Corporation New South Wales

FILE NUMBER: 081002

HEARING DATES: 26 February 2008

SUBMISSIONS CLOSED: 26 February 2008

DATE OF DECISION: 16 April 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977 Workers Compensation Act 1987

CASES CITED: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT P Newall, barrister

ORDERS: Leave is refused.

REASONS FOR DECISION Introduction 1 Mr Thompson has worked for Rail Corporation NSW (RailCorp) since 2002. He was a train guard doing shift work but has been working in a marketing role since February 2007. On 12 April 2007 he lodged a complaint of homosexual discrimination with the Anti-Discrimination Board (ADB). He made the complaint because of his dissatisfaction with the way RailCorp had dealt with homophobic graffiti about him in October 2006. A second complaint of homosexual discrimination was lodged on 20 June 2007. Both complaints were accepted by the ADB and referred to the Tribunal. A third complaint of victimisation was lodged on 27 September 2007. Mr Thompson said that since lodging the complaints of discrimination RailCorp has refused to pay him the same amount he would have been earning as train guard. The President of the ADB declined Mr Thompson's complaint of victimisation under the Anti-Discrimination Act 1977 (AD Act). Mr Thompson has applied to the Tribunal for permission ("leave") to go ahead with that complaint: AD Act, section 96. Approach to leave applications 2 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]: 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. 3 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Elements of victimisation complaint 4 In order to prove that RailCorp has breached section 50, Mr Thompson would have to establish that: 1. RailCorp employees subjected him to a detriment; 2. the reason for being subjected to a detriment was that he alleged that RailCorp employees had done something which would amount to a contravention of the AD Act. 5 I will refer to the first element as "the detriment" and the second element as "the trigger". Material taken into account by the Tribunal 6 The material that the Tribunal has taken into account in determining this application is the material that was before the Tribunal at the hearing and the oral submissions of the parties at the hearing. After the hearing, both Mr Thompson and RailCorp purported to file further evidence and submissions. No directions were made inviting further material. In compliance with the rules of procedural fairness, I have not taken any of that material into account. Background to victimisation complaint 7 In 2003 and again in mid 2006, Mr Thompson became concerned about homophobic graffiti in the workplace. While none of the graffiti was directed towards him expressly he says that in September 2006, he decided to apply for a job as Marketing and Administrative Co-Coordinator with RailCorp. That job was a promotion, but paid less because of the absence of the penalty rates he received as a train guard. He was initially unsuccessful in his application but following an appeal to the Transport Appeals Board on 12 December 2006, he was offered the position. Meanwhile, on 31 October 2006, Mr Thompson says that he suffered a mental health injury at work as a result of homophobic graffiti about him. He was adamant that he could not return to his position as a train guard and that he should not suffer any financial disadvantage as a result of being subjected to the graffiti. He made a claim under the Workers Compensation Act 1987. 8 On 6 December 2006, a week before he was successful in obtaining the marketing position, Mr Thompson formally requested that he continue to be paid the same rate of pay that he would have received had he continued to be a train guard doing shift work and receiving penalty rates. That rate was approximately $64,000 per annum. He says that the request was initially refused but that Ms Lynn Wallace, his Injury Manager, told him that she had obtained agreement from the workers compensation insurer that he would continue to be paid at the rate of $64,000 per annum until the matter was resolved. RailCorp denies that Ms Wallace gave that undertaking. For the purposes of these proceedings, I have taken Mr Thompson's evidence at its highest and assumed that Ms Wallace did give that undertaking. 9 On 7 December 2006 Mr Thompson says that he commenced working in the marketing position "under duress". Although the salary for that position was $48,000 per annum, he says he was paid at the rate of $64,000 until he stopped working just over a week later, on 15 December 2006. RailCorp agrees that he was paid at the higher rate for a period but says that it was due to an administrative error. Again for the purposes of these proceedings, I have assumed that he was paid the extra amount pursuant to an undertaking given by Ms Wallace. RailCorp provided evidence, which confirms that Mr Thompson was advised by letter of 25 January 2007 that he would be paid in accordance with his substantive position when he returned to work. On 5 February 2007 he wrote an email to Ms Wallace asking whether he would continue to be paid at the rate of $64,000 or whether he would be paid at the lower rate. It is difficult to understand why Mr Thompson wrote that email given the content of the letter dated 25 January 2007. Mr Thompson returned to the marketing role on 6 February 2007. On 15 February 2007, after seeing his psychiatrist and being diagnosed as suffering from post traumatic stress disorder, Mr Thompson was certified as unfit for any work. 10 On 19 June 2007, Mr Thompson attended a conciliation conference at the Anti-Discrimination Board in relation to the first complaint that he had lodged in April. He lodged a second complaint the next day, on 20 June 2007. Mr Thompson returned to his marketing job on 3 July on a 'return to work' plan, 3 days a week. However, on that day he says he was told again that he would only be paid at the substantive rate of pay for the marketing role. He says he suffered a panic attack at work. He attended meetings with RailCorp employees on 3 and 4 July and was assessed as fit to return to work on 5 July 2007. Assessment of victimisation complaint 11 Mr Thompson's Submissions.Doing my best to interpret Mr Thompson's allegations, my understanding is that the detriment he says he suffered was that on 3 July 2007 when he returned to work, he was not paid at the higher rate he would have received had he continued to be a train guard receiving penalty rates. He says that RailCorp had agreed to continue to pay him at that rate and that they reneged on that agreement by failing to pay him at the higher rate shortly after an unsuccessful conciliation conference at the ADB. The "trigger" for that treatment was the fact that he lodged complaints with the ADB in April and June 2007. Although Mr Thompson also mentioned the fact that he had made complaints to RailCorp in October 2006, he did not rely on that trigger when he made his complaint of victimisation to the ADB. Even if Mr Thompson was permitted to amend his complaint to allege that his complaint of discrimination to RailCorp in October 2006 was the trigger for the detriment, that cannot have been the case because the alleged agreement to pay him at the higher rate was made after he complained. 12 RailCorp's submission. RailCorp's submission was that when Mr Thompson applied for the marketing job he knew that the overall remuneration would be lower than that for a train guard. He applied for the job before he was injured at work on 30 October 2006 so it cannot be RailCorp's fault if he was successful in obtaining a position, which paid less than his previous position. RailCorp said that there was no causal link between making complaints to the ADB in April and June 2007 and being paid according to the remuneration of his substantive position in July 2007. That is because RailCorp told Mr Thompson by letter of 25 January 2007 that he would be paid in accordance with his substantive position. That was at least three months before Mr Thompson lodged his complaint with the ADB. RailCorp's submission was that being paid in accordance with his entitlements under the workers compensation legislation and his substantive position is not a detriment. Put another way, it is not a detriment to fail to be paid an incentive or bonus. Conclusion 13 It is not the Tribunal's role to determine Mr Thompson's victimisation complaint. Rather, the Tribunal must decide whether there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. 14 The detriment that Mr Thompson is suffering is that he is being paid less in the marketing job than he would have been paid had he continued to be a train guard. For the purpose of these proceedings, I find that Mr Thompson has reasonable prospects of establishing that that constitutes a "detriment" under section 50 of the AD Act. Mr Thompson would then have to establish that the detriment he suffered was "on the ground that" he lodged complaints with the ADB. The test that a Tribunal would be likely to adopt is whether the complaints of homosexual discrimination "had a real causative effect in the sense that but for its presence the act complained of would not have occurred": Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 43]). 15 There are two possible reasons that Mr Thompson is not being paid at the rate he was being paid when he was a train guard. The first is that he applied for, and was successful in obtaining, a different position. That happened prior to him lodging complaints of discrimination with the ADB. The second possible reason is that RailCorp has reneged on an agreement to pay him at the higher rate because he lodged complaints of discrimination. That cannot be the reason for the detriment because RailCorp had told Mr Thompson emphatically on 25 January 2007, prior to him lodging the complaints that he would not be paid at the higher rate. Order Leave is refused.