Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41

Appeal Panel - Internal

CITATION: Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41

APPELLANT PARTIES: Samir Tarjali-Diab RESPONDENT Director-General, Department of Commerce

FILE NUMBER: 069001

HEARING DATES: 28/06/2006

SUBMISSIONS CLOSED: 06/28/2006

DATE OF DECISION: 08/25/2006

BEFORE: O'Connor K - DCJ (President); MacDermott T - Judicial Member; Schembri A - Non Judicial Member

CATCHWORDS: indirect discrimination - appropriate comparator- evidence - procedural fairness

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 041038

DATE OF DECISION UNDER APPEAL: 12/07/2005

LEGISLATION CITED : Anti-Discrimination Act 1977

APPELLANT In person REPRESENTATION: RESPONDENT S Benson of counsel instructed by A Woods, Henry Davis York

ORDERS: Appeal dismissed

REASONS FOR DECISION 1 The appellant worked for six months with the respondent agency between 25 March 2002 and 27 September 2002. He made a complaint under the Anti-Discrimination Act 1977 (the ADA) that the respondent agency had engaged in various acts of unlawful discrimination against him based on his race. He referred to various incidents that occurred during his period of employment. He also alleged that he was improperly terminated. He gave as the ground of discrimination his race. He is a migrant to Australia with an Arabic background. 2 The complaint was found by the Anti-Discrimination Board not to have substance. It was referred to the Tribunal. The Tribunal dismissed the complaint after considering the evidence of the appellant and evidence provided by the respondent agency. 3 The appellant now appeals against that decision. His appeal challenges the following substantive aspects of the decision: (i) the finding of the Tribunal that his employment was temporary in nature, for a fixed term of six months, and was not improperly terminated but simply expired consistently with the terms of appointment (ii) the failure by the Tribunal to use as a comparator employees who were permanent employees for the purpose of examining whether any less favourable treatment had been shown to him (iii) the findings made by the Tribunal in relation to the various incidents of unlawful discrimination that he says occurred in the course of his employment. 4 The appellant also claims that there were procedural errors in the way the Tribunal dealt with his case: (iv) the Tribunal failed to accord him natural justice by not permitting the issuance of certain summonses for the production of documents; and (v) the Tribunal failed to accord him natural justice by not allowing him to amend his complaint to include discrimination on the ground of disability and victimisation. 5 We will deal first with the substantive aspects of the decision. Finding that Employment was Temporary in Nature 6 In our view the Tribunal's finding in this regard was reasonably open to it on the evidence. The chain of official documents (from original advertisement through to the letter of offer, the appointment document and the letter relating to the expiry of the appointment) is consistent. The documents all support the conclusion that the position to which the applicant was recruited belonged to the Migrant Career Development Program (MCDP), an initiative of the New South Wales Government undertaken through the Office of the Director for Equal Opportunity in Public Employment (ODEOPE). The documents show that the respondent engaged the applicant as part of that program, and that the position given to him was a temporary one for 6 months. 7 The applicant seeks to refute the position as evidenced by the documents by reference to several matters: oral indications given to him by officers which he says demonstrated that the position to which he had been recruited was a permanent one; the content of an internal document (a staff roster), which listed him as being responsible for certain work on a date that was six weeks later than the expiry of the 6 month period; the status of the position to which he was assigned, Project Officer (DPWS Staff Grade 3-4); the use of that job description in business cards printed for him; administrative documents showing a 'termination date' of 3 September 2054 and status as 'PF' (Permanent Full-time) against his name; and oral statements at a staff conference held in the context of a possible restructure that 'no one would lose their job'. 8 The Tribunal, we think, was correct in concluding that none of these matters were persuasive. The alleged oral indications are reviewed in the Tribunal's reasons for decision at para [111] and [113-114]. There is no need to repeat that material in detail here. 9 The material to which the appellant attached significance did not, at any time, involve a promise of permanency or make him a permanent officer. 10 For example, the appellant attached great weight to remarks made by a junior clerk. These remarks could not, we think, be reasonably understood in the way that the appellant construed them, and in any case, even if they carried the meaning given to them by the appellant (that they represented a confirmation that he was a permanent officer), no reasonable person could possibly have thought that a junior clerk was in a position to commit the organisation in that way. 11 Another matter to which he attached weight concerned the roster issued by the same clerk. It used the permanent position's title alongside his name. In our view, this was an internal document of a usual administrative kind which simply allocated on a forward daily and weekly basis officers in the relevant unit to certain tasks. The document reflected an assumption of continuity in employment of the existing staff. This is, in our view, typical of the way rosters are expressed. It may well be the case that the roster-writer is not familiar with the specific underlying circumstances of a rostered officer's employment or other factors such as potential leave arrangements. Rosters are merely indicative documents. In a similar category is the 'termination date' marking on administrative documents. The evidence was that the 'termination date' was fixed by the relevant computer system at 99 years after the occupant's birth date; and was no more than a mechanical entry. 12 The point the appellant pressed most strongly concerned the status of the position that he occupied. As we understood his contentions, it was a position that formed part of the permanent establishment of the relevant unit. In our view, it does not follow that an occupant of a position of this kind is, merely by dint of occupation of the position, a permanent officer. A permanent establishment position may be capable of occupation on a temporary, acting or other ad hoc basis. As we understand the evidence in this case, that was the situation. The appellant was assigned to an existing position for the period of his appointment. Nor is any issue raised by the description given in the business card. It was accurate as far as it went. Appropriate Comparator 13 It follows from the above conclusion that we are of the view that the Tribunal used the appropriate comparator when examining the question of whether the appellant was the subject of less favourable treatment by reason of his race than someone who was not of his race. The appropriate comparator was, as the Tribunal found, a person not of the applicant's race who was a participant in the MCDP and held an appointment of the kind provided by the Program (temporary). There was no evidence to suggest that any less favourable treatment had been shown to the appellant. It would have been wrong, contrary to the appellant's contentions, for the Tribunal to have used as the comparator a person of a different race who was a permanent employee. Specific Incidents 14 The appellant relied on several specific incidents that he said occurred during the course of his employment to show that he had been unlawfully discriminated against on the ground of his race. 15 The Tribunal heard the appellant's evidence as to what occurred on the various occasions. The Tribunal heard evidence from the officers named by the respondent in connection with each of these incidents. 16 The Tribunal found that some of the words that offended the appellant had been used. In general, it considered that the wrong connotation had been put on those words by the appellant. It found the officers' evidence to be credible as to what they intended or meant by some of the words that offended the appellant. 17 The appellant had relied at hearing on the content of a particular email which he said he had received from the director of human resources, Ms Stockbridge, as part of his case that he had been dealt with unfairly and unlawfully. The respondent produced expert evidence questioning the authenticity of this email, and raising the possibility that the appellant had manufactured the email. While the Tribunal did not go so far as to make an adverse finding against the appellant, it decided that it could not give weight to the email in light of the evidence questioning its authenticity. We think the Tribunal's judgment was correct. The evidence given by Mr Crawford (solicitor with Henry Davis York) as to his investigations, including advice received from a legal officer with Microsoft Litigation Support in Washington as to Hotmail policy at August 2002, was, we think, strong. 18 The Tribunal in its reasons carefully summarised the evidence of the appellant and the evidence of each of the officers named by the appellant as having been the source of racist remarks towards him or of racist conduct. In our view the Tribunal's findings are quite persuasive. It is not necessary in this decision to retrace the detail. We will simply refer to one illustration. The appellant was offended by the fact that he was not included in the group of officers that went to Ballina to discuss the project on which he was working. It is clear, we think, that the two most senior relevant officers went to the meeting, and it was open to the most senior officer (Mr Saul) to do, as he did, and make a decision as to the size of the team (confining it to two), and, as he did, not including a more junior officer working on the project (the appellant). 19 It is also to be noted, as counsel for the respondent pointed out, that the appellant did not make any complaint of mistreatment on any matter in the months he worked with the respondent. The complaints were first made, as we understand the evidence, in the letter written to the President, Anti-Discrimination Board, on 13 January 2003. This date is after he had been unsuccessful in obtaining a position with the respondent in its South Coast Region. Before the Appeal Panel, he blamed his lack of success on a less-than-strong reference given to the South Coast management by his former boss in the North Coast Regional office, Mr Keeler. 20 The lack of any complaint at or near that time to the respondent – or complaint in the context of his departure – that he had been dealt with in a racist way point against the acceptance of his evidence (the documents do show that he questioned his being regarded as a temporary employee but there is no reference to any concern based on race). 21 In our view the Tribunal's findings in relation to the various incidents are unassailable on the evidence it had before it. Procedural Fairness: Non Issuance of Certain Summonses 22 As Mr Benson, counsel for the respondent, noted, this matter was not raised in the grounds of appeal. The appellant's complaint goes to the upholding by the Tribunal of the respondent's objection to two summonses for certain records relating to the employment of some officers. 23 The record of the Tribunal below reveals, as Mr Benson informed the Tribunal, that several summonses for documents issued by the appellant were met by the respondent. It drew the line at the summonses now put in issue, and the Tribunal upheld its objections that the summonses served no useful purpose and were irrelevant and oppressive. The appellant says the summonses were important because the information that they demanded would have met the Tribunal's criticism in its reasons for decision that he had not supplied any evidence of the fact that he was treated in a discriminatory manner. 24 In the course of the Appeal Panel proceedings the appellant has tried to revive these summonses. He applied on 13 June 2006 for the issuance of summonses for certain employment records of eighteen named employees of the respondent. The hearing of that application, and the consideration of the respondent's objections occurred on 26 June 2006, two days before the appeal hearing. On that occasion, the President sitting alone (the matter being an interlocutory one) refused to grant the application and adjourned it for further consideration as part of the appeal hearing. 25 As Mr Benson noted, it was not clear when the Tribunal was dealing with similar summonses or on this occasion, how the documents sought would support the appellant's case. As we understood the appellant's submissions, he is trying, through the documents the subject of the summons, to build a case that he was dealt with differently from other employees. In this regard the comparator issue is vital. In our view, as already indicated, the comparators are other employees of a different race participating in the MCDP. None of the employees named were participants in the MCDP. 26 We think the Tribunal's reasons for refusing the summonses were sound. It is too late, we think, for the appellant to be allowed on appeal to re-agitate this area by trying to have the Appeal Panel permit the issuance of similar summonses and having the hearing extend to consideration of new evidence. Procedural Fairness: Addition by the Tribunal of New Complaints 27 When the proceedings were at the hearing stage before the Tribunal, the ADA did not allow the Tribunal to permit the addition of new complaints. The final day of hearing was 17 March 2005. While the decision was reserved, amendments were made to the ADA which permitted the Tribunal to give leave for new complaints to be added. These amendments came into force on 2 May 2005. The appellant applied to the Tribunal at this point for complaints of unlawful discrimination on the ground of disability and a complaint of victimisation to be added. The Tribunal dealt with this application at paras [7-11] of its reasons for decision. To accede to a broadening of the complaints at this late stage in the proceedings would have been a grave step. The Tribunal had completed its hearing. It had heard 14 witnesses (the appellant and 13 produced by the respondent). It had sat for 5 days. 28 In our view, the Tribunal exercised its discretion on this point soundly. 29 Moreover we agree with Mr Benson that the circumstances to which the new proposed complaints were related were the same as those upon which the race discrimination complaint was based. Those circumstances had been traversed by the Tribunal. It was therefore in a good position to form a view as to whether any practical injustice might be visited upon the appellant by not allowing the extension of the scope of its inquiry at such a late stage. 30 The appellant indicated that he was aggrieved that there had been references in the proceedings to his health circumstances as they had existed prior to his appointment by the respondent, and also references to his health circumstances since that time. In our view, again as Mr Benson noted, there was nothing problematic about the limited reference to his health history made in these proceedings. Conclusion 31 It will be seen that we do not uphold any of the six grounds of appeal recorded in the appellant's notice of appeal or with the additional grounds that can be discerned from the appellant's written submissions filed 9 February 2006 and taking into account his oral submissions. 32 The appellant has applied for leave to extend the appeal to the merits, in effect inviting the Appeal Panel to reopen and rehear his case. 33 The Tribunal had the advantage of hearing the evidence first hand. It would be the cause of considerable inconvenience and cost to the respondent if we were to allow the reopening of a case where it has been successful at first instance. Any reopening should not lightly be allowed. The appellant has not demonstrated any errors in the approach taken by the Tribunal, either in law, or in dealing with the evidence or in the fairness of its conduct of the matter. 34 Leave is refused. Order Appeal dismissed.