CITATION: Miller v RailCorp [2008] NSWADT 274 DIVISION: Equal Opportunity Division APPLICANT Garry Miller PARTIES: RESPONDENT RailCorp FILE NUMBER: 081073 HEARING DATES: 12 August 2008 DATE OF DECISION: 10 October 2008 BEFORE: Needham J SC - Deputy President CATCHWORDS: Application for leave under section 96 of the Anti-Discrimination Act MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3 Purvis v. State of NSW (2003) 217 CLR 92 at [213]-[224]) APPLICANT In person REPRESENTATION: RESPONDENT K Eastman, barrister ORDERS: Leave to bring application under section 96 of the Anti-Discrimination Act is refused. REASONS FOR DECISION The application 1. Mr Miller ("the applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the President declining his complaints to the Anti-Discrimination Board ("ADB"). 2. The applicant's complaints were of sex discrimination (under sections 23, 24, 25 and 53 of the Act) and victimisation (sections 50 and 53 of the Act). 3. At a hearing of the application for leave on 12 August 2008 I declined the victimisation complaint and reserved my decision on the sex discrimination complaint. I now give my reasons on the sex discrimination part of the complaint. The complaint 4. The applicant complained to the ADB on 15 December 2006 that he was the subject of discrimination on the grounds of his sex by being subjected to different treatment from that given to four women also employed by RailCorp. 5. The complaint to the ADB recited that the applicant had been assaulted by a passenger in 2005 and, for reasons which are not immediately relevant, was disciplined for his role in this assault. He was removed from his position as a train guard pending an investigation and was put on other duties which were, he says unduly restrictive. He complained to RailCorp about his treatment in April 2006 and he says his manager was disciplined. 6. The applicant was investigated as part of this episode and was charged by RailCorp, but all charges were withdrawn. He was redeployed within RailCorp and no longer worked as a train guard. He was, and remains, of the view that this incident in his professional life was a matter of some importance to both himself and the public and felt that it was indicative of a corrupt system of management within RailCorp. 7. In August 2006 he spoke to Channel 7, he says, "to expose the corrupt behaviour of these two senior RailCorp managers". He was "investigated and placed ... on charge for going to the media". He conducted the interview on a train, from the crew compartment, and was not on duty at the time (being away from work on sick leave). 8. He grounds his complaint of sex discrimination by pointing to four named women who, he says, also "have 'gone to the media' to expose corrupt behaviour, discriminatory behaviour, victimisation (sic) and bullying within RailCorp. None of these women have been investigated or charged by RailCorp, which is aware of their activities". 9. The applicant then went on to name the four women, and asked, "if women are not being pursued by RailCorp for exposing illegal practices, why am I, a male?". 10. The complaint concluded, "I enclose supporting documentations". The supporting documents run to some 700 pages of letters, notes, extract from disciplinary policies, copies of newspaper articles (including some featuring the women named in the complaint) and other documents. Many are duplicated and some are of extremely peripheral relevance. Many of them are focused on the incident which triggered the complaint, that is, the assault on the applicant in 2005 and are included, presumably, to absolve the applicant in relation to that incident. That is not the role of the Tribunal on this application. 11. The President declined the complaint as lacking in substance and referred it (which at that stage included a complaint of victimisation) to the Tribunal pursuant to section 92 of the Act. 12. After the complaint was declined, the applicant provided further documentation. A portion of the 700 pages of documentation was not provided to the ADB prior to the decision to decline the complaint, but afterwards, and it was then forwarded with the material which was considered of part of the complaint. For the purposes of this application, and with the consent of the respondent, the material has been taken into account as further evidence which would be brought should the application for leave be granted. 13. The test which must be applied is set out in Xu v Sydney West Area Health Service [2006] NSWADT 3 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." 14. Accordingly, the applicant must satisfy me that there is a substantial ground why the complaint should proceed, despite the decision of the President that it lacked substance. The legislation 15. Section 24 of the Act provides (relevantly):- 24 What constitutes discrimination on the ground of sex (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex 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 the opposite sex or who does not have such a relative or associate of that sex ... 16. Section 25 of the Act provides (relevantly):- 25 Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of sex: (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 sex: (a) in the terms or conditions of employment which the employer affords the employee, …. or (c) by dismissing the employee or subjecting the employee to any other detriment. 17. The applicant must be able to show that there are reasonable prospects of success in showing that:- a. he was treated less favourably than other persons; b. that the, or one of the, reasons for the less favourable treatment was that he was a man; and c. a comparator (of a different sex) would have been treated more favourably in the circumstances and that the respondent treated him less favourably because he is male. (See Purvis v. State of NSW (2003) 217 CLR 92 at [213]-[224]) The applicant's case for leave 18. The applicant relies upon a letter from RailCorp of 19 September 2006 notifying him that Ms Ireland, an investigator with the Workplace Conduct Unit, would be conducting a disciplinary investigation into allegations of breaches by the applicant. The particulars of the alleged breach read as follows:- "That at approximately 13.41 on Tuesday 22 August 2005, you entered the crew compartment of the rear car of Train Number 133F (the Central to Penrith service) at Platform 4 of Redfern Station with a Channel 7 news team and were interviewed by them". 19. The letter continued:- "If proven, these allegations would be in breach of (and here follows a list of State Rail Code of Workplace Standards, in particular) the Code specifically states that employees must not make any comment on behalf of RailCorp or claim to represent RailCorp on any issue unless authorised to do so". The letter notes that on 29 June 2006 the applicant was advised that he was "required to adhere to the RailCorp Code of Conduct at all times; including refraining from media comment". 20. The applicant points to a number of articles in the media including:- a. an article in the Daily Telegraph on 13 December 2006 quoting Ms Dhillon on a complaint of one of the RailCorp managers running an escort agency from his desk and being subject to pornography and sexual harassment during her work. b. An article in the Daily Telegraph on 9 April 2007 showing a photograph of Kimberley Hunt reporting on the settlement of workplace relations proceedings without comment by Ms Hunt. The picture of Ms Hunt does not appear to be a picture in which she is posing for the camera. Rather, it appears to be a picture of her having coffee in a cafe or similar. c. Articles dated 22 August 2004, 9 September 2004, (day not noted) September 2004, 10 October 2004 and (day not noted) November 2004 in which comments by Ms Bimla Chand are noted. He also points to a Statutory Declaration by Ms Chand dated 12 June 2008 in which she states that she spoke to various journalists and to a Member of Parliament at a press conference, that "the then State Rail Authority, now RailCorp, managers were aware of these media reports" and "no disciplinary action was ever taken against me." She adds, "After I gave these interviews I was harassed, intimidated and victimised by the SRA/RailCorp management". 21. The applicant's case is essentially as follows (see his submissions, which are exhibit AX2 on the application):- a. women employees of State Rail gave interviews to the media; b. the applicant gave an interview to the media; c. he was subjected to disciplinary action as a result of the interview he gave; and d. the women were not. The applicant says that these facts are sufficient to be a "substantial ground" for the grant of leave. 22. In a further submission, the applicant says that if leave is granted he would be able to summons documents in the control of the respondent which would assist him in his case. The respondent's case 23. The respondent points to the statutory tests which much be fulfilled for a complaint of direct sex discrimination. The respondent submits that:- "The applicant has failed to provide direct evidence or evidence from which a reasonable inference can be made, that he was treated less favourably than a woman and a reason for the treatment was his gender". 24. The respondent submits that the evidence does not disclose any link between a supposed detriment and the applicant's gender. Nor was it shown that any of the women named were appropriate comparators, their involvement with the media being materially and substantially different from the circumstances of the applicant. 25. In summary, the respondent submits that there is no evidence, and the applicant has accordingly failed to demonstrate, that any of the treatment he was subjected to was meted out because he was a man. Consideration 26. The complaint which was declined by the President is one of direct discrimination. Accordingly, the respondent is correct when it submitted that a comparator is required. From the material, Ms Chand can be regarded as a suitable comparator, although of course a notional comparator is also appropriate (see Purvis at [135]). 27. The applicant, in terms, puts forward four people as examples of the direct discrimination and so, while he does not use the exact term, it appears that he is putting them forward as comparators. In oral submissions, the applicant said that he, and they, gave media interviews, and that he was disciplined because of it. The applicant said that the only difference in the treatment was the gender of the persons speaking to the media. 28. With respect, that analysis is too simplistic. The applicant was investigated for entering a crew compartment of a train with a news crew. The evidence discloses that neither he, nor the news crew, were authorised to be in that area on that day. The Code of Conduct prohibits speaking to the media on behalf of RailCorp. While the applicant denies he did so, that is the charge which was investigated by Ms Ireland. It is notable that he had already been warned, in writing, not to speak to the media. 29. In contrast, the women who are quoted in the media are decidedly not speaking on behalf of RailCorp. They were bringing to the attention of the journalist specific work practices which referred to them, some of which were later (or were concurrently) the subject of legal proceedings. In the case of Ms Hunt, she was not quoted in the context of speaking to a journalist, and it appears, as noted above, that she was not complicit in having her photograph taken. 30. It is not clear from any of the media reports that any of the interviews with Ms Chand or any other proposed comparator took place on RailCorp property, particularly on property which was closed, as the crew compartment was, to the general public. None of the women worked with the applicant, and the evidence does not disclose that they had similar jobs working as train guards, as the applicant's former employment was. While none of these factors would be conclusive, they do point to different considerations being present in any possible decision not to investigate them for their comments. 31. Further, there is no evidence, apart from the evidence relating to Ms Chand upon which she was not cross-examined, that the women were not disciplined. The applicant gave his understanding that this was so, but RailCorp is a vast organisation and it is not to be expected that the applicant is privy to the internal workings of the Workplace Conduct Unit. Ms Chand was engaged in legal proceedings and gave interviews about those legal proceedings. 32. It could certainly be the case that the investigation into the applicant's conduct was subjecting him to a "detriment" within the meaning of the Act. However, it is not clear from the evidence that the detriment thus suffered was because the applicant was a man, nor that any women who were not investigated for breaches of the Code of Conduct was because they were women. There are just too many differences between the circumstances of the particular cases for that connection to be easily made. 33. There is no direct evidence of how the applicant's treatment related to his gender. The allegation of sex discrimination relies upon the link being made between what Ms Chand says about no investigation being undertaken into her comments to various journalists and what Mr Miller experienced. It is not the case that the only, or even the most likely, explanation for that difference is that Mr Miller is a man; the differences in the circumstances between the applicant's interview and Ms Chand's interviews are significant and provide many more grounds for investigation of the applicant than merely his gender. In particular, the inviting of a media crew into an area which is not open to the public, on a day when the applicant was on sick leave, provides a logical and sensible basis for further enquiries being made by the respondent. 34. Accordingly, given that there is no real comparator, or any realistic "notional" comparator, and there is no direct or inferential evidence of any link between the instigation of the investigation and the applicant's gender, there are no reasonable prospects of success for the application and accordingly leave is refused. 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