Awad v Sydney West Area Health Service [2005] NSWADT 39

CITATION: Awad v Sydney West Area Health Service [2005] NSWADT 39 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: Equal Opportunity Division APPLICANT PARTIES: Sami Awad RESPONDENT Sydney West Area Health Service FILE NUMBER: 041098 HEARING DATES: 7 and 8 February 2005 SUBMISSIONS CLOSED: 02/08/2005 DATE OF DECISION: 02/24/2005

BEFORE: Britton A - Judicial Member; Weule B - Non Judicial Member; Lowe A - Non Judicial Member APPLICATION: Race Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 APPLICANT REPRESENTATION: In person RESPONDENT J Nand, solicitor ORDERS: Complaint of race discrimination is dismissed

REASONS FOR DECISION 1 Sami Awad is a pharmacist who has worked at Westmead Hospital in Sydney since 1998. He claims that throughout the course of his employment he has been discriminated on the grounds of race by his employer, the Sydney West Area Health Service (SWAHS) which manages the Hospital. He alleges that in 2002 his supervisor, Mr Kingsley Ng, delayed processing his applications for study leave and upgrading, which he would not have done had Mr Awad been of Anglo Celtic extraction or from Hong Kong. Mr Awad was born in Egypt. The Hospital denies these allegations and, in support, points to the diverse multi-cultural background of its staff. Scope of complaint 2 By letter dated 28 September 2002, Mr Awad lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") in which he set out seven matters he claimed constitute race discrimination. Of these, three are out of time (s 88(3) of the Anti-Discrimination Act 1977 ("the Act")) namely the claims concerning paternity leave, pager and roster arrangements. Mr Awad withdrew a further two matters during these proceedings (staffing in the Dispensary Unit and access to drug training). As a result we are left with two claims: Mr Awad's study leave application and his application for upgrading to the position of Pharmacist Grade Two. 3 An issue to emerge in these proceedings has been whether two 'complaints made by Mr Awad in letters to the Board dated 10 December 2001 and 18 April 2002 fell within the scope of the referral by the President made under s 94(1) of the Act. In answer to an inquiry from the Tribunal a delegate of the Board has advised that the April 2002 'complaint' had been declined as the President had formed the view that it disclosed "no link to the Act". Further, we were told that the December 2001 'complaint' had been declined as Mr Awad did not request for it to be referred to the Tribunal (s 91(1)) and that he was advised of this by letter dated 25 February 2003. What Mr Awad must prove 4 Section 8(2) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of race: (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. 5 To succeed in his complaint Mr Awad must, on the balance of probabilities, establish that in respect of each claim: First, that the Hospital denied him access, or limited his access to, opportunities for promotion or training, or to any other benefits associated with his employment (s 8(2)(b)) or, subjected him to any other detriment (s 8(2)(c)). Second, that, in the same or similar circumstances, a pharmacist not of his race or holding a characteristic of his race would have been treated more favourably by the Hospital ("differential treatment"). Third, that one of the reasons for that less favourable treatment was, his race ("causation"). 6 It should be noted that the two allegations (the study leave application delay and the upgrading application delay) do not necessarily stand or fall together. It is not necessary for Mr Awad to make out both claims to establish a complaint of race discrimination. 7 The Hospital accepts responsibility for the conduct of its employees, therefore no issue arises under s 53 of the Act. Claim 1: Study Leave Evidence 8 Mr Awad applied to his supervisor, Mr Ng, for study leave to undertake a Masters degree in Public Health at Sydney University. Mr Ng told Mr Awad he would not approve the application as, in his view, the course was not directly relevant to his work as a pharmacist. Mr Awad claims that when he gave Mr Ng a written application in December 2001 he immediately "threw it in the bin". In his complaint to the Board, Mr Awad stated that he made his application in March 2002. 9 Mr Ng denies either receiving anything in writing or throwing it in the bin. He could not recall when Mr Awad first approached him but it is apparent from the chronology that it was no later than the commencement of the academic year as Mr Awad, with Mr Ng's agreement had been attending lectures in work hours (providing he made up his hours) since March 2002. 10 A written application for study was made by Mr Awad on 16 May 2002, and approved by Brad Astill, who had delegation to approve study leave, 13 days later. It is common ground that this application was first given to Mr Astill, or as he is described by the parties, "human resources", sometime in May. Mr Astill's evidence was that upon receipt he promptly approved the application as, in his view, it fell 'within policy'. 11 The Hospital's policy on study leave is set out in Circular No. 2000/61. It describes NSW Health as a 'Learning Organisation' and tells us that a 'learning organisation' is one where "every individual is encouraged and supported to locate and create his/her own learning opportunities...learning activities may provide benefits to the organisation, as well as the individual". It goes on to state that managers and supervisors are responsible for "promoting and supporting learning activities for staff...and must advise all employees of the protocol for review procedures relating to non- approval of learning and development leave [emphasis added]". It goes on to state that where leave is refused, the reason for non-approval must be clear and in writing. The policy states that access to leave is "at the discretion of NSW Health and should be made available to all employees to promote the development of a highly trained, skilled and versatile workforce". 12 It is unclear what advice, if any, Mr Ng gave Mr Awad after he was first approached about the application. In a statement tendered in these proceedings, Mr Ng says it was not his role to approve study leave applications; this was the province of Human Resources (HR). It is unclear whether he advised Mr Awad if his application should be forwarded to HR. Mr Ng claims he did not tell HR that he objected to Mr Awad's application. Findings and Conclusions Denial of access to study leave 13 The Hospital in these proceedings emphasised first, that Mr Awad did not make his initial application on the approved form and second, that Mr Ng did not have the delegation to approve leave. It is not entirely clear, however we understand that the Hospital asserts that it therefore follows that the conduct of which Mr Awad complains, was not a denial, or limitation of access to training, and as such, is not caught by s 8(2)(b). 14 The evidence as to whether the initial application was in writing is in conflict. The evidence of Mr Ng and Mr Awad is unsupported. We cannot be satisfied on balance that the initial application made to Mr Ng was in written form. In any event, it is our view that little turns on this. As is clear from the evidence, an application of some sort was made to Mr Ng and flatly rejected, at least as early as March 2002. While the Hospital asserted that there was a requirement that applications for study leave be made on the correct form which Mr Awad eventually used, we have not been taken to any document to support this. 15 Further, we think it matters little whether Mr Ng did have the final say on study leave. The evidence shows that Mr Awad took his application to Mr Ng apparently because he believed that he was the appropriate port of call. There is no evidence, nor is it claimed, that Mr Ng told Mr Awad that if he did not like his answer he should take it up with HR, or that he had no power to reject or approve the application. Instead, he refused the application and as a consolation said he could attend lectures in his own time providing he made up the hours. 16 Mr Awad was denied access to study leave from the start of the academic year until approval was finally granted in May 2002. This in our view is conduct capable of falling within s 8(2)(b) and s 8(2)(c). Less favourable treatment 17 Mr Awad must establish that the treatment he received was less favourable than the treatment actually afforded a pharmacist not of his race, in circumstances that were the same or not materially different. In the absence of evidence of an actual comparator, the comparison must be made using a hypothetical or notional comparator, who sits in the same, or not materially different circumstances, to Mr Awad. 18 Mr Awad cites as his actual comparator, his colleague, Olivia Kay, who he claims applied for and was granted study leave. It appears that Mr Awad may be mistaken as the Hospital's records do not indicate that she took leave during the period alleged. 19 Without evidence of an actual comparator we must decide whether it is more likely than not that Mr Ng would have rejected an application for leave to undertake a Masters in Public Health made by our hypothetical comparator. Namely a staff member in a comparable position to Mr Awad, namely a relatively junior pharmacist under Mr Ng's supervision. 20 The reason given by Mr Ng for refusing Mr Awad's initial application was that in his view the proposed course was not directly relevant to Mr Awad's work. Mr Ng took the view that it was more appropriate that he undertake further studies in clinical pharmacy not public health. 21 An examination of the Hospital's study leave policy would not support Mr Ng's interpretation that leave can only be granted if the proposed study is "directly relevant" to the employee's work. The policy provides that study leave is available where, in addition to other requirements, there is a "benefit to the employee and potential benefit to the employer". Read in the context of the document as a whole, which emphasises that ongoing learning is to be encouraged, it is apparent that Mr Ng's interpretation of the policy was overly restrictive. As events turned out, it was not one shared by his own HR Department. 22 We have no reason to believe that it was Mr Ng's practice not to advise employees who applied to him for study leave (or for any other benefit) that he did not have the power to determine their application. Nor is there any evidence that it was his practice, as the policy demands, not to advise staff that if they did not like his decision, they had a right of review. There is no evidence that Mr Ng clearly and unequivocally told Mr Awad that he did not have any say in his application and should take it up with HR or that he had a right of review. It is not altogether clear what triggered Mr Awad's eventual decision to put his application to HR. However, it is clear that the original application, in whatever form it was received, was refused and that Mr Awad not notified in writing of his review rights. 23 In our view, Mr Ng's failure to clearly advise Mr Awad that the decision regarding study leave was not his to make and that there was a right of review, constitutes less favourable treatment. 24 Whether a particular course of study falls within the scope of the Hospital's study leave policy is a matter on which minds might, and no doubt do, differ. We are not satisfied, as Mr Awad invites us to conclude, that Mr Ng formed the view he did because of Mr Awad's race. We accept that Mr Ng held the honest view that Public Health was not directly relevant to pharmacy. Claim 2: Upgrade application Evidence 25 In December 2001, Mr Awad handed Mr Ng a written application for an upgrade to the position of Pharmacist Grade Two. Neither Mr Awad nor Mr Ng kept a copy. Tendered in these proceedings was a covering letter dated 10 December 2001 and about 20 attached documents including references and certificates of Mr Awad's qualifications (Exhibit A3). These were taken from Mr Awad's personnel file. Mr Awad identified these documents as the ones handed to Mr Ng in December, but conceded that they were different in two respects. First, the original version of the covering letter was slightly different and, second, two of the attached documents namely a reference from Ms Koller, the Assistant Director of Pharmacy (Clinical) and a certificate of appreciation issued by the Pharmacy Association were not included in the attached bundle. Mr Ng disagrees and claims that the application he was given was in draft form had few of the attached documents which Mr Awad now claims he handed him. 26 Mr Ng told Mr Awad that he would not support his application, because he had not addressed each of the nominated criteria and some of his claims were not "properly substantiated". He said that he gave Mr Awad some advice about how his application could be improved, and met with him about his application on two further occasions, the last time in about April 2002. 27 Mr Ng's evidence is that the time taken to approve an upgrade application can vary dramatically and is determined by, among other things, the quality of the application. He said that, on average, applications are resubmitted twice, although it can be up to four times. He said some are approved virtually on the spot. 28 Mr Awad claims that Mr Ng never got back to him after December 2001 despite the fact that he had raised the matter every couple of months. He claimed that after the application made by Debbie Best [a Grade One pharmacist employed at the Hospital] was processed in about July 2002 he contacted Garry Arthur from the union, who spoke to Mr Ng on his behalf. Mr Awad said he did not hear back from Mr Arthur. Mr Awad said the application was finally resurrected when he raised it in passing with Ms Koller, who located the application from Mr Ng's files and provided Mr Awad with a supportive reference. 29 Although it is not entirely clear, the best evidence indicates that the application was submitted to HR in December 2002, and approved in February 2003. Payment was backdated to October 2002. 30 Mr Ng gave evidence that it was not only the form of Mr Awad's original application that troubled him. In his view, the application was borderline as he was not sure Mr Awad had six months experience in a relevant specialty or was able to supervise staff. [The Award under which Mr Ng was employed provides that a Pharmacist Grade Two must have, among other things, six months experience in a relevant specialty and demonstrated ability to supervise staff.] It is to be noted that Ms Koller apparently held no such concerns. In a reference dated 6 December 2002, she attested that Mr Awad had more than 12 months experience in the speciality of cardiology and had demonstrated ability in supervising staff, citing his work as co-ordinator of the Sterile Suite, his coordination of students in the cardiology unit and his work as supervisor in the Hospital Dispensary. Findings and Conclusions Claim 2: - Upgrade application 31 Denial of benefit or access to benefit Before proceeding to consider the evidence we will deal briefly with the Hospital's contention that formal approval for any upgrade application fell with the HR Department and not Mr Ng. We understand the Hospital to suggest that it follows that any part played by Mr Ng in delaying Mr Awad's application is not caught by s 8(2)(b). Mr Ng did not hold the delegation to sign off on upgrade applications, but it is apparent that for all practical purposes, he was effectively the gatekeeper. On his own evidence, not one application for upgrade had been processed without his approval, while he has been Head of Pharmacy, a position he had held since the Hospital first opened. 32 We are satisfied that the conduct complained of, if proven, constitutes a denial of a benefit (s 8(2)(b)) and/or a detriment (s 8(2)(c)). 33 Less favourable treatment The less favourable treatment identified by Mr Awad is first, Mr Ng's insistence that he substantiate all claims made in his application, and, second, the delay in it being approved. Mr Awad nominates as his comparator, Ms Best. He also alleges that a number of his colleagues from Hong Kong had their upgrade applications approved almost immediately. We have insufficient information about these applications and therefore must assess the question of whether Mr Awad received less favourable treatment on the basis of Ms Best's application alone. 34 (i)Substantiation requirement It is not possible to say with any certainty exactly what was handed to Mr Ng in December 2001 as neither kept a copy and the evidence of both Messrs Ng and Awad is in some respects unsatisfactory. Each rely on recalling events that occurred over four years ago. Neither is assisted by contemporaneous notes. Given the passage of time, it is somewhat surprising that each witness was apparently extremely confident that they could remember precisely what was in the initiating application. In cross-examination, Mr Ng when shown a copy of Exhibit A 3, without turning beyond the cover page, concluded that it was not the document given to him in December 2001. Mr Awad steadfastly asserted that Exhibit A 3 was the initiating application and only modified that claim when it was drawn to his attention that it contained documents dated later than December 2001. 35 We cannot be confident of the accounts given by either witness but find it more probable than not that the initiating application contained the covering sheet dated 10 December 2001, a version of the short form application prepared by Mr Awad contained in Exhibit A3, and some supporting documents. From what is before us we cannot determine either what was in the short form application or how many and which documents were attached to it. 36 Irrespective of what was contained in the initiating application, it is uncontroversial that Mr Ng told Mr Awad he would not support it unless his claims were "substantiated". Mr Ng said he wanted to see evidence of Mr Awad's overseas qualifications and particulars of both his experience as a supervisor and his work in a specialty. It is not altogether clear what other claims made by Mr Awad, if any, Mr Ng thought needed to be supported. It is also unclear whether Mr Ng made it clear to Mr Awad precisely what he thought need to be addressed in his application. 37 An examination of Ms Best's application reveals that it is superior in form to Mr Awad's original application, to the extent we can discern what was in the latter. It details how she met all criteria. (Whether in substance she was the more meritorious candidate is a matter on which we have insufficient evidence and are unable to comment.) In contrast, Mr Awad's original application did not give details of his experience or qualifications, a defect only cured later by Ms Koller's reference. While Ms Best addressed all the criteria in some detail she did not supply any third party documents to substantiate her claims except for a single academic reference which addressed her academic achievements not her work experience. Mr Ng conceded that he may not have demanded these from her and thought that her details of her qualifications might have been "on file". There is no evidence before us of what documents were held on either employee's file. 38 Ms Best in our view represents an inappropriate comparator. While Mr Ng did not require her to submit material from third parties in support of her claims, her application nevertheless set out clearly, and in some detail, how she met each of the prescribed criteria. That level of detail was sadly lacking in Mr Awad's application at least until Ms Koller's assistance was enlisted. In the absence of such detail, it is understandable that Mr Ng would have insisted that Mr Awad's claims be supported by further material. 39 Less favourable treatment on this count is more usefully assessed by asking, would Mr Ng have insisted that an applicant pharmacist who had submitted an application containing broad and general claims must provide supporting documentation. It seems to us that the answer to this question is probably yes. 40 Accordingly we are not satisfied that less favourable treatment is made out. 41 (ii)Delay in processing application While it is impossible to say with any certainty what happened in the second half of 2002, the evidence indicates that Mr Awad's application fell into something of a black hole. On his own evidence Mr Ng did not speak again to Mr Awad about his application for over six months. We think it unlikely that Mr Awad might have indicated that he had let his application drop. It may be that this hiatus could be explained by Mr Ng's misgiving about whether Mr Awad met all the criteria. 42 We accept that in the initial period Mr Ng might have provided Mr Awad with some advice of a general nature. However, we see no evidence that he put to Mr Awad in unambiguous terms what steps he needed to take to rectify his application. In reaching this conclusion, we note that in the evidence Mr Ng has given in these proceedings, he had some difficulty articulating precisely what claims Mr Awad needed to "substantiate" and how this could be achieved. 43 To establish less favourable treatment it is not enough that Mr Awad point to some shortcoming in the way his application was processed. He must be able to point to some evidence that the treatment he received was different than that received by a comparable employee, actual or hypothetical. Again we consider Ms Best to be an inappropriate comparator as the application she made was materially different to that made by Mr Awad. 44 Can it be said however that if faced with a comparable employee, namely one who submitted an application defective in form, Mr Ng would have let it languish for over six months and not communicated how it could be rectified, if indeed that was possible? On his own assessment, Mr Ng was something of an exacting taskmaster, sometimes insisting that applicants resubmit as many as four times. However, we see no evidence that as a matter of course he either failed to clearly instruct his staff on how their applications could be improved or simply overlooked those he considered defective. Yet, from the best evidence before us, this appears to be what happened. 45 We are satisfied that the manner in which Mr Ng dealt with Mr Awad's application constitutes less favourable treatment. Causation 46 The final issue for us to consider is whether one of the reasons for Mr Awad's less favourable treatment was his race. 47 As conceded by Mr Awad, there is no direct evidence that he was treated less favourably because of race. He submits that in considering this matter we should not restrict ourselves to the two claims before us, but look also to the history of his treatment since he started at the Hospital. He claims not to be alone in holding the view that race discrimination permeates employment practices and says that other "ethnic" staff share his view although they were not prepared to give evidence in his case because they feared for their jobs. 48 Mr Awad claims that staff from Hong Kong, and of Angle Celtic heritage, routinely receive better treatment than he and his ethnic colleagues. He cites the alleged unexplained fast tracking of upgrade applications made by pharmacists from Hong Kong; the rostering arrangements in place throughout 1999 which, he asserts, meant that in contrast to "non-ethnic" staff, he was forced to work in the Hospital's sterile unit for long periods causing him to be injured on account of the physically repetitive nature of the work; the rostering arrangements operating in the Inpatient Dispensary Unit in 2002 when he was Acting Supervisor which left him with insufficient and inadequate staff; the Hospital's refusal to grant him paternity leave in 2001; the Hospital's refusal to promote him on two occasions, despite the fact that on his account, he was the more experienced and meritorious candidate; the alleged practice of generally not appointing "ethnic" staff to the Hospital's internal committees. 49 Mr Awad argues that if the decisions made by the Hospital about his study leave and upgrade applications are considered against the background of these events the inescapable conclusion must be that race played some role. 50 Ms Koller Before proceeding to consider these matters, we must examine the allegation made by Mr Awad that it was Ms Koller who was primarily responsible for his racist treatment. He asserts that Ms Koller was entirely responsible for roster arrangements and as such had ultimate control in the pharmacy section. It follows, we understand Mr Awad to argue, that Ms Koller exercised this power to persuade others in her Department not to support his applications. When asked to explain the apparent inconsistency between this allegation and Ms Koller's strong reference supporting his 2002 upgrade, Mr Awad asserts that she only did so because he had lodged a complaint with the Board and was "covering her back". 51 Not surprisingly, Ms Koller denies this. She claims that she first learnt of Mr Awad's complaint when she was asked to provide a statement in these proceedings. She said she was aware through a case before the Government and Related Employees Appeal Tribunal in 2004 that "another matter was on foot" involving Mr Awad. She steadfastly denied that she provided Mr Awad a reference for any reason but that she held the genuine belief that he met the criteria and as such was deserving of her support. 52 The President first wrote to the Hospital notifying it of Mr Awad's complaint ten days after Ms Koller wrote a reference for him. It is possible that someone from the Board rang the Hospital before the written complaint was sent. We understand that it is standard procedure for a delegate of the President to advise a respondent in advance that they could expect to receive a complaint in the mail. We do not know if that occurred in this case. There is simply no evidence that Ms Koller knew of the complaint when she wrote the reference for Mr Awad. In reaching that conclusion, we note the tenor and content of Ms Koller's reference, which would not suggest that she provided it under duress. It is not a document couched in euphemisms. It attests in clear and unequivocal terms that Mr Awad met the eligibility requirements and should be supported. 53 In our view, Mr Awad's claim is without foundation and Ms Koller's denial is accepted. 54 It seems to us in respect of the two claims before us that the evidence indicates that it was Mr Ng who was primarily responsible for the decisions of which Mr Awad now complains. In our opinion there are a number of unsatisfactory aspects about the manner he dealt with Mr Awad. What is especially puzzling is why Mr Ng and Ms Koller, each senior members of the Pharmacy section, held such divergent views about Mr Awad's capabilities and experience. We note that no evidence has been led to even hint that Mr Awad may be something other than a model employee. His final application indicates that he enjoys the respect of many staff across the Hospital. Further, we note that Mr Ng was simply wrong on one of the matters that troubled him about Mr Awad's initial application, that is, whether he had the requisite specialty experience. As Ms Koller pointed out, Mr Awad had twice the experience required. As this could have been verified from the Hospital's records, it is puzzling that it played a role in the delay of Mr Awad's application. 55 Aspects of the way Mr Awad's study leave application was handled also trouble us. Mr Ng quickly formed the view that it was "outside policy" and apparently summarily dismissed it. He gave no explanation as to why Mr Awad did not receive reasons for the failure to approve the application as required by the Hospital's study leave policy. The explanation for these procedural shortcomings could be entirely innocent. While the evidence may not support a finding that race played a role in Mr Ng's handling of these applications, it is nonetheless somewhat unclear why he acted as he did. Findings and Conclusions 56 Mr Awad must establish on balance that one of the grounds, not necessarily the main or dominant one, for the Hospital treating him as it did was his race. 57 It is notoriously difficult in the absence of any direct evidence, for a claim of race discrimination to be made out. As observed by the Western Australian Equal Opportunity Commission in Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is"... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial." 58 Mr Awad has taken us to what he asserts is evidence of repeated incidents of unequal treatment dating back to when he started at the Hospital. Taken at their highest, each lack sufficient detail to enable us to base a finding that race played a role. Having made that observation, we note the very real and practical difficulty faced by self-represented parties of obtaining cogent and reliable evidence of what has occurred in their workplace over an extended period of time. It is possible that Mr Awad has correctly read the situation and that either consciously or otherwise race infected some of the Hospital's decisions. However, we cannot be satisfied on balance that this was so. 59 There are a number of troubling aspects about why Mr Ng treated Mr Awad in the manner he did. However, we cannot be satisfied to the requisite standard that race explains that conduct. We accept that Mr Awad holds the sincere belief that race played a role in the Hospital's decisions. However subjective beliefs, however genuine, do not provide an adequate basis on which to base a finding of race discrimination. 60 Accordingly, we have no option but to dismiss Mr Awad's complaint of race discrimination. Order Complaint of race discrimination is dismissed.