Equal Opportunity Tribunal of New South Wales CITATION: Kamar -V- Kanweld Products Pty Limited [1997] NSWEOT COMPLAINANT: John Kamar RESPONDENT: Kanweld Products Pty Limited NUMBER: 30 of 1996 Mr G Ireland ( Judicial Member ) TRIBUNAL: Ms S Tracey Mr O MacDonald OAM (Member) GROUNDS OF COMPLAINT: Disability in employment DATES OF HEARING: 05/19/1997 DATE OF JUDGMENT: 05/19/1997 Complainant: No Appearance LEGAL REPRESENTATIVES: Respondent: Mr L Asplet JUDGMENT IN FAVOUR OF: Respondent (extempore judgment) CHAIRPERSON: The Tribunal has decided that it will accede to your request, Mr Asplet. This inquiry finds that there is no substance in the complaint that has been made by Mr Kamar and we will order that the complaint be dismissed. Our reasons are these. This claim was made by Mr Kamar to the Anti-Discrimination Board on 9 March 1995. By letter dated 19 February 1996 the President of the Anti-Discrimination Board advised the Registrar of the Tribunal that the President had declined to entertain the complaint on the basis that it lacked substance and pursuant to s 94(1) of the Anti-Discrimination Act 1977 (The Act) the President had referred the complaint for inquiry by this Tribunal following a request made by Mr Kamar in accordance with the Act. The Tribunal had the matter referred to it on 19 February 1996. On 28 May 1996 Patten J made directions for the management of the matter including directions for the filing of points of claim. Those directions were not strictly complied with. The complainant finally lodged his points of claim on 25 September 1996. In the meantime, on 11 September 1996 the matter came before me sitting as a judicial member in order to vacate the hearing dates which Patten J had fixed on 2 and 3 September 1996. On that occasion by consent, I ordered that the hearing dates be vacated and then fix the dates for hearing for 22 and 23 January 1997. When the matter came before me again on 22 January 1997 Mr Kamar made an application for the hearing to be adjourned to enable him to obtain legal representation and also having regard to what he told the Tribunal were problems of a psychological nature that he had. With some reluctance and in the face of opposition from Mr Asplet, the general manager of the respondent, on that occasion, I ordered that the hearing dates of 22 and 23 January 1997 be vacated and I fixed the hearing dates for 19 and 20 May 1997. In doing so on that occasion I made these comments: "Now I want to make it quite clear to you Mr Kamar that in view of the history of this matter and in fairness to the respondent because this tribunal has to be fair to both parties" I was then interrupted by Mr Kamar who said: "I understand your Honour but that's why I--" and I then went on to say: "There is no likelihood of this hearing being further adjourned." Later the transcript shows that I said this: "So the best I can do is have the matter unfortunately adjourned again, but as the hearing date has now been adjourned twice from September and again today and tomorrow the matter must proceed on 19 and 20 May and if your legal representation is not able to proceed on that date, I'm afraid the Tribunal will have to proceed notwithstanding." Mr Kamar responded: "I'm very very grateful, I'm really very grateful to your Honour." By letter dated 9 may 1997 Mr Kamar wrote to the Registrar of the Tribunal in which he notified the Registrar that he wished on 19 May, that is today, to apply to have the hearing vacated again and he gave us his reasons firstly that he did not have legal representation, secondly that he was not able to carry on his own representation and he attached some letters from doctors to show that he was under stress. Thirdly he said that to force him to appear unrepresented in his condition would be very unfair and fourthly he referred to the fact that what he called: "subpoenaed evidence which I require for my case. This evidence is not yet available and I have been unable to access this evidence which is vital for my case." Then by fax message received at the Registry this morning from Mr Kamar he states: "I am John Kamar in no position to attend to EOT today 19/5/97 for hearing because of my physical and psychiatric condition." At the commencement of the hearing this morning I invited Mr Asplet who represents the respondent to state his position in relation to Mr Kamar's requests for the further adjournment of the matter. Mr Asplet advised the Tribunal that he strongly opposed the application in view of the long history of this matter, not only the history of the lapse of time between the date on which the complaint was made to the Anti-Discrimination Board but also on the basis of the nature of the complaint itself and the fact that it was unable, in his view, to be substantiated. Mr Asplet requested that the Tribunal proceed today to consider the matter. After considering the position, the Tribunal has decided that it would be unfair to the respondent if the matter did not proceed today. The Tribunal considers that the complainant has been given ample opportunity to be in a position to proceed with the matter on this occasion and in view of the admonition made to him on 22 January that the Tribunal would be unlikely to grant any further adjournments of the matter, the Tribunal considers that Mr Kamar has had adequate notice that the matter would proceed today. The material that has been supplied more recently by Mr Kamar to the Tribunal does not advance, in the opinion of the Tribunal the reasons any further to justify the matter being further delayed. For these reasons the Tribunal has considered that the matter should proceed notwithstanding that Mr Kamar has not appeared today. In his absence, the Tribunal has proceeded to hear the application by Mr Asplet under s 111(1) of the Act for the complaint to be dismissed on the ground that it lacks substance and that for any other reason it should be dismissed. Before proceeding to deal with the substance of this application, the Tribunal makes reference to the subpoena to which Mr Kamar referred. Some time previously Mr Kamar had lodged an application with the Registry for the issue of a subpoena directed to the respondent requesting the respondent to supply the names and addresses of all employees of the respondent between the dates in which Mr Kamar had been employed by the respondent. Notice of this request for the issue of the subpoena was given, at my direction, to the respondent and the respondent replied to the Registrar pointing out that in view of the psychological condition of the complainant, the respondent objected to the issue of the summons as the respondent was concerned for the welfare of its employees if their names and addresses were made available to the complainant. In view of that objection, the Tribunal has refrained from issuing the subpoena and has taken into account the respondent's suggestion that if the complainant were legally represented that the information required by the complainant would be supplied to the complainant's legal representative on the condition that the legal representative did not disclose the names and addresses of the employees to the complainant. We have been advised today by Mr Asplet that approximately one month ago, at a time when the complainant was legally represented, that he had supplied a list to that legal representative on the conditions referred to and notwithstanding one of his employees was contacted by the complainant and was subjected to abuse on the telephone. For these reasons the subpoena has not been issued at this time by the Tribunal. I am interrupting the delivery of this decision to note that there has been a letter received by the Registrar by fax from Dr Soliman of the Blacktown Family Surgery. It was received at approximately 2.10pm, that is 6 minutes ago. Attached to the fax is a certificate signed by a clinical psychologist, Anton Khabbaz who says that he attended on Mr Kamar today and that Mr Kamar was anxious and showed signs of severe stress and pain. It goes on to say that Mr Kamar is receiving ongoing counselling in relation to this depression and that: "I doubt that in his present state Mr Kamar would appear before a tribunal without adequate legal representation, something he cannot afford presently." The Tribunal has conferred in relation to that fax message and has decided that, notwithstanding what has been conveyed in the fax message, it will proceed with its decision. The Tribunal has considered the material in the President's report which has been tendered and received as an exhibit and it has also considered the evidence given this morning by Mr Asplet and it is on the basis of that material that it has decided to dismiss this complaint. The material shows that Mr Kamar was employed by the respondent following completion by the respondent of an application for employment dated 6 April 1994. Mr Kamar was employed under the Commonwealth Government Job Start system which subsidised for a period the wages paid to Mr Kamar. It has been suggested that having regard to what the respondent now knows of the prior employment history of Mr Kamar that it may be possible that Mr Kamar was not entitled to the support of the Job Start system. However no evidence was produced which enabled the Tribunal to come to any conclusion on this aspect and it merely notes this submission. In his application to the respondent for employment, Mr Kamar omitted to refer to his more recent employment with the company Techniskil Namutoni Pty Ltd which occurred after 1993. In his application, Mr Kamar showed that his last employment was in 1993 although he does not show the date on which that employment ceased. It is clear that Mr Kamar was employed by Techniskil Namutoni Pty Ltd after 1993 as there has been tendered to the Tribunal documents relating to an application for worker's compensation made by Mr Kamar in respect to injuries that occurred on 18 January 1994 and 25 January 1994 whilst employed by Techniskil Namutoni Pty Ltd. The worker's compensation documents tendered to the Tribunal show that the nature of the injury described by Mr Kamar includes "injury to back". The application for employment also has been completed to show the time of the application, 6 April 1994. Mr Kamar states that he was in good health, that he had no back disorder and no serious injury and further states "no" to the question whether he had ever claimed worker's compensation. It should be said that the worker's compensation documents do not disclose the date on which Mr Kamar made his worker's compensation application. However the documents show that Mr Kamar had not been frank or truthful in the way in which he completed his application for employment with the respondent. The circumstances that give rise to the complaint commenced on Monday 26 September 1994 when Mr Kamar alleges that at the direction of the workshop manager of the respondent, Mr Graham Toms, Mr Kamar lifted a container containing steel brackets. He says that on that day, he attended at Pacific Medical Centre where Dr C Foo issued a medical report stating that Mr Kamar was unable to work from 26 September 1994 to 30 September 1994 and contained the words "low back pain". Mr Kamar goes on to allege that he did not return to work with the respondent until Wednesday 28 September 1994 when he showed that medical certificate to Mr Toms. The records, comprising bundy records, of the respondent showed that Mr Kamar attended and worked with the respondent on Tuesday 27 May 1994 from 7.26am to 3pm and those records show that on Wednesday 28 May 1994 there was no record of his attendance but a comment is made in the records showing that Mr Kamar was off sick on that day. Mr Asplet has told the Tribunal that Mr Toms says that he was not shown the medical report and that if he had been shown the medical report, he would have kept a copy as that was his practice. Mr Toms is an experienced member of the respondent's staff and he has been employed for approximately 26 years and accordingly to Mr Asplet, is a man of experience and well used to dealing with matters involving worker's compensation. It was also pointed out to the Tribunal that Mr Kamar had produced medical reports to the respondent on two occasions and that copies of those medical reports had been retained. Those occasions are on 7 August 1994 when he had a foreign body in his eye and on 13 September 1994 where the medical certificate was for acute flu virus. On this evidence it is the view of the Tribunal that it is more likely than not that Mr Kamar's evidence is not correct when he alleges that he produced a medical report to Mr Toms. A copy of the medical report is contained in the President's Report. It may be the case that that medical report was obtained for the purposes of the worker's compensation claim relating to the claim against Techniskil Namutoni Pty Ltd and was not and was never intended to be used in relation to Mr Kamar's alleged claims against the respondent before this Tribunal. The first that Mr Asplet says that he knew of a problem between the respondent and Mr Kamar was on Friday 3 February 1995. On that day, Mr Toms told Mr Asplet of the unsatisfactory attendance record of Mr Kamar. On that day Mr Kamar had left at 12 noon without any explanation or without any request to leave early. Mr Asplet phoned Mr Kamar at his home and discussed his absences and Mr Kamar told Mr Asplet that he was not well because of his back problem. This caused Mr Asplet to review Mr Kamar's employment history with the respondent and to decide to issue a warning letter to Mr Kamar. On Monday 6 February 1995 Mr Kamar was again absent, without having made any contact with the respondent. On Tuesday 7 February 1995 Mr Kamar was approximately 3 minutes late and Mr Asplet arranged for Mr Toms to give him the warning letter. On Wednesday 8 February 1995 Mr Kamar was approximately 13 minutes late for work. He told Mr Toms, after Mr Toms complained about his lateness, that if he did not like it he could sack him. Mr Toms then spoke to Mr Asplet and then formally dismissed Mr Kamar who left the respondent's premises. It is with this history that the Tribunal has considered the potential of the claim by Mr Kamar that he has been discriminated against by the respondent unlawfully, on the ground of his disability. Mr Asplet has pointed out that the first time the respondent was aware that Mr Kamar was alleging that he had suffered a disability because of his back disorder was on 3 February 1995. Mr Asplet said that Mr Toms denied that Mr Kamar had spoken to him any earlier about a back problem and denied that Mr Kamar had produced to him a medical report about a back condition. Mr Asplet further submitted that by the time he became aware that Mr Kamar was claiming a back problem, Mr Kamar's unsatisfactory attendance record had developed to a stage where the respondent had decided to terminate his employment on that ground. In these circumstances the evidence before the Tribunal falls far short of any capacity to establish the allegations made by Mr Kamar that the respondent had discriminated against him or if there had been discrimination that it was on the grounds of his disability arising out his back condition. The Tribunal is satisfied that there are illustrations in the matters that have been put before it to show that Mr Kamar had not been frank and indeed may well have deliberately misled the respondent about his earlier history of employment and the fact that he had not made a worker's compensation claim. These examples do not demonstrate that Mr Kamar can be accepted as a person of credit and this influences the Tribunal in its approach to the medical certificates that had been received in support of Mr Kamar's application for the matter to be further adjourned. In summing up all these matters the Tribunal considers that this complaint is not likely or capable of being established and that it should be dismissed at this stage. Accordingly the Tribunal orders that the complaint be dismissed and makes no order as to cost. I will order that any of the exhibits that you wish be returned to you, after the period of appeal has expired, be returned to you. That will be a period of 21 days. I will direct that after that, on the basis there is no appeal lodged, those exhibits be returned to you. 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.