CITATION: Samar v Sydney South West Area Health Service [2007] NSWADT 109 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Raul Samar RESPONDENT Sydney South West Area Health Service FILE NUMBER: 071030 HEARING DATES: 9 May 2007 SUBMISSIONS CLOSED: 9 May 2007 DATE OF DECISION: 15 May 2007 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT A Dansie, solicitor ORDERS: Leave is refused REASONS FOR DECISION Introduction 1 Mr Samar is employed by the Sydney South West Area Health Service (SSWAHS) as a security officer at the Concord Repatriation General Hospital. He complained of disability discrimination to the President of the Anti-Discrimination Board (ADB). The President declined his complaint as lacking in substance. Because the President declined the complaint, Mr Samar needs the Tribunal's permission or "leave" before his complaint can go ahead: AD Act 1997, s 96(1). A hearing was held on 9 May 2006 to determine whether leave should be granted. Background 2 Mr Samar had an operation on his eye on 7 June 2006. His doctor provided a medical certificate stating that he would be unfit for work until 11 June. Mr Samar returned to work on 12 June and says that he wore prescription sunglasses inside during that time. He did not advise his employer of any restrictions on his ability to do his job, nor that he needed to wear sunglasses inside. On 20 June 2006 Ms Bridget Searle saw that Mr Samar was wearing sunglasses inside and asked him to provide a doctor's certificate indicating that he needed to do so. Despite alleging in his complaint to the ADB that Ms Searle did not allow him to wear sunglasses, Mr Samar conceded during the hearing that she did allow him to continue wearing sunglasses inside but requested that he provide a medical certificate. On 20 June 2006, Mr Samar provided a medical certificate saying that "he needs to wear eyeglasses at work." In a memorandum from Chris Thomas dated 23 June 2006 Mr Samar was told that before he came back to work on 27 June, he should provide a doctor's certificate clarifying and elaborating on his fitness for work and his need to wear sunglasses inside. The memo stated, in part, that: The certificate that you have provided does not clearly state that you are fit for pre injury duties, it does sate what you require to wear at work, eg eye glasses not sunglasses: however, the certificate you have provided is not specific enough to continue work wearing the sunglasses. In order to comply with Occupational Health and Safety regulations, either provide clarification of your eye protection requirements or provide me with a doctor's certificate stating that you are fit for pre-injury duties. If you are not fit for work, you will need to provide me with a certificate explaining this also. 3 On 23 June 2006 Mr Samar provided a medical certificate which stated that he was "fit for normal duties and needs to wear eye/sun glasses to protect his eyes." Mr Samar was asked again to provide a further certificate setting out the period during which he would need to wear sunglasses while working inside. At each stage of the process, employees of SSWAHS consulted Andrew McGarity, Rehabilitation Co-ordinator at the hospital, for advice about the provision of medical certificates. 4 Mr Samar said that his doctor was not able to specify the period during which he would need to wear sunglasses. No medical certificate specifying an end date has been provided but Mr Samar has been permitted to continue to wear sunglasses inside. 5 According to Mr Samar he was the only security officer required to provide a medical certificate before being permitted to wear sunglasses inside. He says that two other security officers who wear sunglasses at work were not required to provide medical certificates. Mr Samar also alleged at the hearing that one of his supervisors, Bruce Hampton, wears sunglasses while working inside. He conceded that he did not know whether or not Mr Hampton had a medical certificate supporting his need to wear sunglasses inside. 6 The SSWAHS provided a policy document entitled "Security Policy and Procedures, dated November 2005 which includes the following statement: Eyeglasses/Sunglasses Prescription eyewear is authorised for wear Sunglasses (Cancer Council approved) may be work on an as needed basis, but are not to be worn indoors or during darkness. Officers are required to remove their sunglasses when communicating with others, unless the glasses are prescription. 7 The SWAHS said that Mr Samar was treated in the same way as every other employee who returned to work after an injury. They added that security staff are permitted to wear sunglasses while on duty outdoors without providing a medical certificate. However, it would be contrary to policy to allow employees to wear sunglasses inside without providing a certificate from a medical practitioner. According to SSWAHS, their employees acted in accordance with this policy and their occupational health and safety obligations by requesting that Mr Samar provide a medical certificate relating to his need to wear sunglasses inside. It was not their responsibility to ask Mr Samar whether he needed to be accommodated in any way after his return to work. Rather, it was Mr Samar's responsibility to alert his employer to the fact that he needed to wear sunglasses and to provide a medical certificate to that effect. President's reasons for declining complaint 8 The President of the ADB declined the complaint as lacking in substance. He said that: 1. You have not provided sufficient information to substantiate your allegations that you were discriminated against and victimised by management on the ground of disability when you were requested on a number of occasions to provide medical certificates. 2. The respondent has provided a plausible and non-discriminatory explanation as to why you were required to provide medical certificates following your return to work from eye surgery. Approach to determining leave under section 96 9 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]: 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. 10 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including, for example, that the complaint has reasonable prospects of success. Relevant provisions 11 Mr Samar is presumably alleging a breach of s 49D(2)(a) (b) or (d) of the AD Act. Those provision state that: (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (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 ... (d) by subjecting the employee to any other detriment. 12 Direct discrimination on the ground of disability is defined in s 7(1)(a) and (2) as follows: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 13 It is sufficient if disability is one of the grounds for the less favourable treatment: AD Act, s 4A. The SSWAHS is liable for unlawful acts of its employees in certain circumstances: AD Act, s 53. Prospects of success 14 Although there was no evidence of the nature of Mr Samar's disability, I accept that a Tribunal hearing this case is likely to be satisfied that Mr Samar has a disability as defined in s 4. If the matter proceeded to hearing, Mr Samar would have to prove that he was treated less favourably than a person without his disability would have been treated in the same or similar circumstances and that at least one of the reasons for that treatment was his disability. In my view, the conduct and policies of the SSWAHS strongly suggest that Mr Samar was treated in the same way as a person without his disability would have been treated. Nevertheless, at a hearing, it is possible that Mr Samar would be able to prove, as he asserts, that other security officers wore sunglasses inside and were not asked to provide a medical certificate. If that is the case, an inference may arise that at least one of the reasons Mr Samar was asked to provide a medical certificate was that he has a disability. Substantial injustice 15 On the broader question of whether refusing leave would lead to a substantial injustice, even if Mr Samar was able to establish that SSWAHS had directly discriminated against him on the ground of his disability, any damages to which he would be entitled would be minimal. He agreed that he has never been asked to remove his sunglasses and is continuing to wear them inside. The only minor inconvenience that Mr Samar has suffered is being asked to provide medical certificates. Those requests were, to some extent, prompted by the fact that the first certificate that he provided did not even refer to the need to wear sunglasses. If the first medical certificate had contained adequate particulars, there would have been no need for SSWAHS employees to repeat the request. Despite the fact that he was asked to provide a third certificate he has not done so and continues to be permitted to wear sunglasses inside. As the damages to which Mr Samar may be entitled if he were able to prove discrimination are insignificant, I am not satisfied that refusing leave would lead to any substantial injustice. Order Leave is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.