CITATION: AO v Commonwealth Bank of Australia [2007] NSWADT 135 DIVISION: Equal Opportunity Division APPLICANT PARTIES: AO RESPONDENT Commonwealth Bank of Australia FILE NUMBER: 061108 HEARING DATES: 18 June 2007 SUBMISSIONS CLOSED: 18 June 2007 DATE OF DECISION: 21 June 2007 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed - Race Discrimination - In work MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT E Raper, counsel ORDERS: Leave is refused REASONS FOR DECISION Introduction 1 AO is a woman of Indian national origin who began working at a telephone call centre with the Commonwealth Bank of Australia in 1999. AO says that she first requested a transfer to non-telephone position in April 2004. She says that her employer refused to provide her with a non-telephone position. At her request in May 2004, she was transferred to another call centre where she performed essentially the same role until she resigned on 24 July 2005. On 4 November 2004 AO was granted six weeks' leave without pay. On 10 November 2004, she was given a further 7 months leave to 1 July 2005. In May 2005 AO asked if she could return to work in a non-telephone position. When that request was refused she asked if she could extend her leave without pay to 31 December 2005 or be granted a three year "career break". Those requests were refused, but AO was given a 3 week extension to 22 July 2005 while these negotiations were taking place. When none of her requests was granted, she resigned from her employment on 24 July 2005. AO said that she needed either to work temporarily in a non-telephone position or take more leave because of her son's medical condition and her own health. 2 In November 2005, AO complained to the President of the Anti-Discrimination Board that her employer had discriminated against her on the grounds of her race, disability and carer's responsibilities in breach of the Anti-Discrimination Act 1977 (AD Act). Her race discrimination complaint was that the Bank refused to allow her to re-commence her employment in July 2005 in a temporary non-telephone position. The President declined to extend time in relation to the race discrimination complaint. That complaint covers the period from 10 November 2004, when AO went on unpaid leave, to 9 November 2005 when she lodged her complaint. The President ultimately declined AO's complaint of race discrimination on the basis that it was lacking in substance. The complaints of disability and carer's responsibilities were not declined. AO decided to pursue her race discrimination complaint in the Tribunal but before she can do so, she needs the Tribunal's permission or "leave": AD Act, s 96(1). Approach to determining leave 3 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 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. 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. 4 In summary, AO needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the race discrimination complaint has reasonable prospects of success. Race discrimination 5 Section 8 of the AD Act makes it unlawful for an employer to discriminate against 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. 6 I have assumed, for the purposes of these proceedings, that AO is alleging that the Bank's refusal to allow her to re-commence her employment in July 2005 in a temporary non-telephone position, was the denial of a benefit associated with employment or an allegation that she had been subjected to a detriment: s 8(2)(b) or (c). 7 Discrimination is defined in s 7 in the following terms: (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. 8 AO alleged that she had been discriminated against "directly" on the ground of her race and/or on the ground of a characteristic that appertains generally to persons of her race: 7(1)(a) and s 7(2). Elements of race discrimination in this case 9 Introduction. If leave were granted for the complaint of race discrimination to proceed, AO would have to establish, on the balance of probabilities, that: a) the Bank's failure to allow her to work temporarily in a non-telephone position after returning from leave without pay, was either the denial of a benefit associated with employment or a detriment; b) the Bank treated her less favourably than they treated or would have treated a non-Indian person, or a person who did not have her racial characteristics in the same or similar circumstances; and c) at least one of the reasons the Bank refused her request to be placed in a temporary non-telephone position was her race or a characteristic that appertains generally to persons of her race: s 4A. 10 Denial of benefit or detriment. According to the Bank, there were no non-telephone positions available in May 2005 apart from management positions (for which AO was not qualified) and support positions (for which AO was over qualified). AO acknowledged that there were no vacant positions to which she could be transferred when she returned from unpaid leave. Nevertheless, she requested placement in a clerical or support role which did not involve answering the phone. She said that before she went on unpaid leave, many people of non-Indian background were permitted to work in such positions if, for example, they had a sore throat or did not feel well enough to speak on the phone. She was requesting that she be accommodated in that way, rather than returning to full time work involving telephone contact. 11 Assuming that AO did make such a request and that it was refused, the issue remains as to whether or not failing to accommodate AO in this way amounts to denying her a benefit associated with employment or subjecting her to a detriment. As there was no entitlement to be placed in a non-telephone position, it is arguable that refusing to do so is not the denial of a benefit associated with employment. On the other hand, if other employees were afforded that opportunity from time to time, in the same or similar circumstances, then the refusal may be regarded as the denial of a benefit. Similar arguments apply to the question of whether the conduct constitutes a detriment. Ultimately, the Tribunal would have to resolve this issue with the benefit of further evidence and submissions if leave were granted. 12 Differential treatment. If AO could satisfy the Tribunal that the Bank's conduct amounted to the denial of a benefit or being subjected to a detriment, AO would then have to prove that that conduct was discriminatory. The first question would be whether AO was treated less favourably than a person of non-Indian background was or would have been treated in the same or similar circumstances. AO said that prior to her going on leave other employees, who were not of Indian background, had been permitted to work temporarily in non-telephone positions, but she had never been afforded that opportunity. She said that when she requested that she be placed temporarily in a non-telephone position in May 2005, the Bank's refusal was consistent with their previous approach of refusing to allow her to work in such a role. 13 In my view it would be very difficult for AO to establish that the Bank's treatment of her amounted to differential treatment. One significant hurdle would be for AO to prove that the circumstances in the workplace in May 2005, in terms of opportunities to work in a non-telephone contact role, were the same, or not materially different, from the circumstances prior to her going on leave. According to the Bank, there had been a re-structure in that time. Furthermore, the circumstances in which other employees were permitted to work temporarily in support roles would have to be the same, or not materially different, from AO's circumstances. AO did not say that she wanted to do non-telephone contact work for a specific period of time. Her request was open-ended. That makes her request different from a request from a person who needed to be accommodated for a short period. 14 Causation. The final element of AO's complaint of race discrimination is that at least one of the reasons the Bank refused to allow her to work in a non-telephone position was her race, or a characteristic that appertains generally to persons of Indian background. To understand this submission I need to set out some of the history of AO's performance and comments that were made about her communication skills. 15 AO began working in a call centre in 1999. She said that her communication style on the phone had never been criticised. In a performance report dated 23 February 2004, AO's communication skills were described as follows: "Demonstrates good communication skills and provides clear and concise explanations on most occasions." A further comment was added in relation to call quality monitoring: "[F]elt that you did not have your full attention on the clients. Several times client details were asked for again eg name, client number etc." 16 On 19 March 2004, AO was given a verbal warning in relation to three matters: the way she responded to a manager's question after returning from sick leave, adherence to her scheduled roster and responsibilities when she is unable to attend work. In September 2004 AO says she met with the executive general manager, Gary Glover, in relation to being transferred to a non-telephone position. She said that he told her that managers see her as difficult. He also discussed the way she communicates. She said that she explained that her communication style was different from people from an Anglo-Saxon background. She said that she was introverted and quiet at times. 17 Subsequently AO saw a counsellor who was made available through the Bank's employee assistance program. She said that the counsellor told her that some managers considered her to be difficult and aggressive. AO said that the counsellor also told her that the use of her arms when she is speaking can be considered aggressive although, in her opinion, she did not find AO to be difficult or aggressive. AO says that she was also told by her managers that staff perceived her to be aggressive because of the way she used of her arms and hands to express herself in a forthright manner and that that was a characteristic that generally appertains to people form an Indian background. After she had resigned in July 2005, AO received a performance review report covering the period from July to November 2004. In that report her customer service skills were assessed as needing improvement. She said that she had never previously had an adverse report about her customer service skills. Conclusion 18 There is some doubt about whether or not the Bank's treatment of AO amounts to the denial of a benefit of employment or a detriment. Even if it does it is highly unlikely that AO would be able to prove that the conduct is constitutes discrimination as defined in s 7. The circumstances in which AO asked to be placed in a non-telephone role are likely to be materially different from the circumstances in which other, non-Indian, employees were previously placed in those roles. Furthermore, it is highly unlikely that the evidence about AO's communication style would support an inference that a reason that she was refused a non-telephone position was her race or a characteristic that appertains generally to people of her race. There was very little concern about AO's communication style on the phone. In any case, those concerns would not be relevant to a decision to place her in a non-telephone role. Some managers regarded her communication style as "difficult". Her counsellor expressed the opinion that using her arms to express herself may be perceived as being aggressive. AO perceived herself as being "quiet" and "introverted". It is unlikely that AO would be able to prove that any of these characteristics were characteristics that generally appertain to people from an Indian background. Even if she did establish that connection, there is nothing other than conjecture to link opinions about her communication style with a decision not to place her in a non-telephone role when she returned from leave. 19 In my view AO's prospects of success in relation to the complaint of race discrimination are extremely low and there is no other substantial reason for granting leave for that complaint to proceed. Order 20 Leave is refused. 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