Karekar -v- TAFE Commission of New South Wales [2000] NSWADT 187

CITATION: Karekar -v- TAFE Commission of New South Wales [2000] NSWADT 187 DIVISION: Equal Opportunity Division APPLICANT Nandkishore Karekar PARTIES: RESPONDENT TAFE Commission of New South Wales FILE NUMBER: 991007 HEARING DATES: 11/08/2000 SUBMISSIONS CLOSED: 08/11/2000 DATE OF DECISION: 12/22/2000

BEFORE: Goode P - Judicial Member; Alt M - Member; McDaniel M - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary Issue LEGISLATION CITED : Anti-Discrimination Act 1977 Langley v Niland & Anor (1981) 2 NSWLR 104 Reyes-Gonzales v Sydney Institute of Technology (1998) NSW EOT (6 March 1998) CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Tannock v State of New South Wales (1999) NSWADT 31 Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 APPLICANT REPRESENTATION: In person RESPONDENT TAFE Commission of New South Wales ORDERS: The application be dismissed.

Introduction 1 This is an application seeking summary dismissal of Mr Karekar's complaint. The TAFE Commission of New South Wales ("the Respondent") seeks relief pursuant to s 111(1) of the Anti-Discrimination Act, 1977 ("the Act"). 2 At all relevant times, Mr Karekar was employed as a general storeman at the Respondent's Ultimo Campus. He alleges that the Respondent unlawfully discriminated against him, in contravention of s 8 of the Act, on the ground of his race. He is an Indian. 3 Although strictly the respondent to the application, for convenience Mr Karekar is referred to as the Applicant. The Respondent submits that we should dismiss the complaint first, on the ground of the Applicant's failure to pursue his complaint diligently and secondly, on the ground that the complaint is misconceived and/or lacking in substance. The relief sought by the Respondent is opposed by the Applicant. Background 4 In order to address the various issues raised by the application, it is necessary to look briefly at the background to the complaint and its passage through the Anti-Discrimination Board ("the Board") and the Tribunal. 5 The Board received a complaint from Mr Karekar on 2 August 1996 alleging that he had been subjected to unlawful discrimination on the ground of his race while employed by the Respondent from 17 August 1992 to 11 July 1996. Inter alia, he alleged that: · he had been subjected to discriminatory treatment; · offensive language had been directed at him; · he had been unfairly transferred to another location within the Ultimo Campus; · his resignation on 11 July 1996 amounted to a constructive dismissal. 6 By letter dated 7 August 1996, the President of the Board wrote to the Applicant and asked him to provide further details of the alleged discrimination so as to demonstrate some connection between his race and the treatment he allegedly received. 7 As the President did not receive any response to his letter, the Applicant's file was closed. It was subsequently re-opened after the President received a letter from the Applicant on 28 July 1997 stating that he wished to pursue his complaint. In his letter, the Applicant advised that he had taken the matter to the NSW Industrial Commission but had not been successful. 8 Exercising the discretion vested in him pursuant to s 88(4) of the Act, the President ultimately decided to accept the Applicant's complaint out of time. 9 The President conducted an investigation into the complaint and concluded that on the material before him, there was insufficient evidence that the Applicant had been subjected to unlawful discrimination on the ground of his race. Accordingly, pursuant to s 90(2) of the Act, the President advised the Applicant on 2 December 1998 that the complaint was "lacking in substance" (s 90(1)). 10 As a consequence, on 15 December 1998 the Applicant asked the President to refer the complaint to this Tribunal (s 91(1)). 11 On 26 May 1999, the Applicant appeared before the Tribunal in person and was directed to file his Points of Claim, statements of evidence and any documents upon which he intended to rely (if not already contained in the President's Report). He advised the Tribunal that he had lodged an application for legal aid but had not received a reply. 12 When the matter again came before the Tribunal on 21 July 1999, the Applicant stated that he had still not received a reply to his request for legal assistance. In the circumstances, he was given until 17 August 1999 to file his Points of Claim and supporting documents. 13 Although the Applicant was ultimately unsuccessful in securing legal aid, he was able to file his Points of Claim on 10 August 1999. He stated in them that his first language was Hindi. 14 When the matter came before the Tribunal on 18 August 1999, the Respondent was directed to file its Points of Defence and supporting documents by 21 September 1999. The Tribunal also directed that a Hindi interpreter be present at the next directions' hearing. 15 When the Applicant appeared before the Tribunal on 22 September 1999, a direction was made requiring him to prepare (with the assistance of an interpreter) a statement of evidence setting out the details of the alleged unlawful discrimination and to file all other supporting documents by 20 October 1999. 16 At the next directions' hearing on 27 October 1999, the Respondent informed the Tribunal that the Applicant had not filed the requested statement of evidence and that all he had filed was his Points of Claim and a document entitled "Reply to Points of Defence". It was submitted that this made it difficult for the Respondent to know the case it had to meet. We have perused the Points of Claim and ascertained that while set out in general terms, the Applicant's foreshadowed evidence is actually attached to them. The Tribunal directed that the parties be given leave to obtain a hearing date from the Registry. Although the Applicant pressed for a date before the New Year, the earliest date suitable to the Respondent was 2 March 2000. 17 Sometime after the directions' hearing on 27 October, the Applicant returned to India to live. Subsequently, by letter dated 7 February 2000, he sought an adjournment of the hearing fixed for 2 March 2000 on the ground that he was unable to leave India. In a further letter dated 21 March 2000, he explained that his family circumstances made it impossible for him to leave India until later in the year and, therefore, that he would be unable to attend a directions' hearing scheduled for 5 April 2000. 18 At the request of the Respondent, on 5 April 2000, the Tribunal adjourned the matter to 7 June 2000 for the express purpose of hearing an application to have the complaint dismissed under the provisions of s 111(1) of the Act. The Applicant was duly notified of the proposed application by the Registry. 19 By letter dated 16 May 2000, the Applicant advised the Registry that he was unable to leave India before August 2000 and therefore that he would not be attending the hearing on 7 June 2000. 20 When the matter came before the Tribunal on 7 June 2000, Ms Brus, Counsel for the Respondent was ready to proceed with the application to have the complaint dismissed. Nevertheless, taking into account the Applicant's family circumstances and his express wish to pursue his complaint, the Tribunal decided to adjourn the Respondent's application to 11 August 2000 when it was anticipated that the Applicant would be back in Australia. Directions were made to ensure that: · a brief outline of the Respondent's reasons for seeking a dismissal of the complaint ("the Respondent's outline of reasons") was forwarded to the Applicant in both English and Hindi; · in the event that the applicant was unable to attend the Tribunal in person, he be given the opportunity to forward written submissions in response to the s 111(1) application and the Respondent's outline of reasons; · the Applicant be informed that the s 111(1) application would definitely proceed on 11 August 2000. 21 By letter dated 14 July 2000, the Applicant advised the Registry that he was unable to be in Australia on 11 August 2000 but that he still opposed the Respondent's application to have the complaint dismissed. When the matter came back before the Tribunal on 11 August, we heard the Respondent's application in the absence of the Applicant. We had before us the Respondent's outline of reasons and the Applicant's written submissions, as set out in his letter of 14 July. Ms Brus expanded briefly upon the Respondent's outline in her oral submissions to us. 22 As mentioned before in para 3, the Respondent's application has two limbs. We address the Applicant's alleged failure to pursue his complaint diligently in paras 39 and 40 below. We also discuss the contention that the complaint is misconceived and / or lacking in substance in paras 41 - 47 below. Before doing so, it is appropriate to briefly outline the nature of the Applicant's case against the Respondent. The material has been drawn primarily from the Points of Claim and the information provided by the Applicant to the President of the Board. In assessing the material, we have taken the Applicant's case at its highest : see para 37 below. The Applicant's Case 23 On 17 August 1992, the Applicant was employed by the Respondent as a general storeman in one of the Respondent's stores in the School of Electrotechnology (which comprises Electronic Trades, Electrical Trades and Industrial Electronics). The Foreman of Class Servicing, Mr Betts, was primarily responsible for his day to day supervision. 24 The Applicant alleges that as a consequence of discriminatory treatment he was subjected to by the Senior Head Teacher of Electrical Trades, Mr Shearston, and another of the Respondent's Storemen, Mr Saad, he had no alternative but to resign on 11 July 1996. 25 He also alleges that Mr Shearston directed him to do "racially motivated unauthorised extra work" on many occasions over a period of nearly 2 years and that in late July 1995 he transferred him to a different location within the School of Electrotechnology without authority. 26 About one month before the transfer, Mr Shearston allegedly directed the Applicant to "do a job for him" and when he repeatedly declined, Mr Shearston got upset and walked away, making the remark "Indians are stupid". 27 The Applicant also alleges that over a period of 18 months, Mr Saad used offensive language towards him, issued orders to him without authority, interfered with his duties, unfairly criticised him, harassed him, and generally caused him a lot of distress. While he concedes that other employees were also unhappy with Mr Saad's treatment towards them, he alleges that he was the main target of Mr Saad's harassment. 28 While there is no dispute that at the Applicant's request, the circumstances of his transfer were investigated by both the Faculty Director and the Institute Director, he disputes the Respondent's finding that the transfer was based solely on the rationalisation of the Electrotechnology Division and the educational needs of the students. He maintains that the treatment he received from both Mr Shearston and Mr Saad occurred on the ground of his race. 29 As a result of the alleged conduct, the Applicant also maintains that he suffered emotional distress and ill health. Relevant Legislation 30 Section 111(1) of the Act provides: "Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint." 31 Both the Act and the Administrative Decisions Tribunal Act, 1997 ("the Tribunal Act") contain provisions which permit the Tribunal to dismiss a complaint before a full inquiry has been concluded. 32 Section 73(5)(h) of the Tribunal Act is couched in narrower terms than s 111(1) of the Act and provides that the Tribunal: "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance." 33 Although s 73(5) of the Tribunal Act and s111(1) of the Act are designed to operate together (see s111(3) of the Act), it is clear that the category "for any other reason" has been omitted from s 73(5)(h). The Respondent in the present case relies on s 111(1), rather than s 73(5)(h), presumably because of its reliance, inter alia, on the Applicant's alleged failure to pursue his complaint diligently. 34 As was observed by Hunt J. Langley v Niland & Anor (1981) 2 NSWLR 104 at 107, of the five specific descriptions which the Tribunal may give to a complaint it is asked to dismiss under s 111(1) of the Act, the category "for any other reason" appears to be broader in scope than its four companion descriptions and is subject to a strong indication not to be read ejusdem generis with them. 35 While there is no commonly accepted definition of the terms "misconceived" and "lacking in substance", the terms have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and the Commonwealth levels. We consider it is appropriate to describe a complaint as "misconceived" or "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit. This is consistent with the approach adopted in Langley v Niland & Anor at 107 and Reyes-Gonzales v Sydney Institute of Technology (1998) NSW EOT (6 March 1998). 36 We are also of the view that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125; Tannock v State of New South Wales (1999) NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where a s 111(1) application is made prior to the adducing of the Applicant's evidence at the substantive hearing. 37 In the circumstances of the present case, in order to ascertain whether the complaint is "misconceived" or "lacking in substance", we propose to take the Applicant's foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act : see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18. 38 In essence, if we are of the view that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either "misconceived" or "lacking in substance". If we are not so persuaded, clearly this ground of the Respondent's application under s 111(1) of the Act must fail. Failure of Applicant to Pursue his Case Diligently 39 Turning to the first ground of the Respondent's application, we now consider whether we should dismiss the complaint for the reason that the Applicant allegedly failed to pursue his case diligently. Ms Brus submits that the Tribunal would be entitled to dismiss the complaint for this reason alone. 40 Having given the matter careful consideration, we are not persuaded that the circumstances outlined earlier in this decision in paras 11 to 20 constitute a sufficient reason for dismissing the complaint under s 111(1) of the Act. In reaching this view, we have been particularly influenced by the difficulties arising out of the Applicant's return to India, the fact that he was ready to proceed with a hearing in November or December 2000, and the fact that English is not his first language. We have also been influenced by the lack of any real prejudice which the Respondent has suffered, or is likely to suffer, as a consequence of the Applicant's conduct of his complaint. Nevertheless, we wish to stress that the circumstances of the present case are somewhat unusual, and that it should not generally be assumed that a failure to pursue a complaint diligently through the Tribunal will attract a similar result. Is the Complaint "misconceived" or "lacking in substance"? 41 The Respondent submits that even taking the Applicant's foreshadowed evidence at its highest, the alleged conduct could not possibly amount to a contravention of s 8 of the Act and accordingly we should find that the complaint is "misconceived" or "lacking in substance" and dismiss the complaint. 42 Sections 8(1) and (2) provide: "(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." 43 Section 7 sets out what constitutes discrimination on the ground of race. Relevantly, s 7 states: "(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 . . . . 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 (b) . . . . (c) . . . . (2) For the purposes of sub-section (1)(a) . . . ., 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. 44 Section 4A of the Act makes it clear that provided the Applicant's race is one of the reasons for the Respondent's conduct, the conduct will still be regarded as unlawful, even though the Applicant's race is not the dominant or a substantial reason for the conduct. 45 In order to establish his case, the Applicant must prove, on the balance of probabilities, that the Respondent discriminated against him on the ground of his race in one or more of the ways specified in s 8. In doing so, the Applicant needs to prove, vicariously through the conduct of the Respondent's employees (specifically Mr Shearston and Mr Saad), that the Respondent treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would treat a person of a different race. 46 The Applicant's Points of Claim do not specify which of the particular heads of s 8 is alleged to have been breached. Presumably, the Applicant seeks to rely on s 8(2). Having given the matter careful consideration, we conclude that the foreshadowed evidence (attached to the Applicant's Points of Claim) taken at its highest, is capable of demonstrating first, that the Applicant was treated less favourably than the Respondent's other storemen and secondly, that there is a causal connection between the Applicant's less favourable treatment and his race. True it is that much of the Applicant's foreshadowed evidence is in general rather than specific terms. Nonetheless, we are of the view that the alleged conduct is capable, at the very least, of constituting a detriment within the meaning of s 8(2)(c). 47 Accordingly, we are satisfied that the alleged conduct is capable of contravening s 8(2)(c) and that the complaint is neither "misconceived" nor "lacking in substance". It follows that we do not accede to the Respondent's application to dismiss the complaint under s 111(1) of the Act. Orders 48 The Respondent's application is dismissed. Directions 49 The matter is to be relisted for further directions at a date to be fixed by the Registrar, in consultation with the parties.