Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47

CITATION: Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47

DIVISION: Equal Opportunity Division

APPLICANT Jaafar Baalbaki PARTIES: RESPONDENT Rail Corporation of New South Wales

FILE NUMBER: 081123

HEARING DATES: 24 February 2009

SUBMISSIONS CLOSED: 24 February 2009

DATE OF DECISION: 3 March 2009

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave, no reasonable prospects of success

LEGISLATION CITED : Anti-Discrimination Act 1977

Xu v Sydney West Area Health Service [2006] NSWADT 3 CASES CITED: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 26 Cosma v Qantas Airways Limited [2002] FCA 640

APPLICANT A Sandroussi, solicitor REPRESENTATION: RESPONDENT K Eastman, barrister

ORDERS: Leave is refused.

REASONS FOR DECISION Introduction 1 Mr Baalbaki was employed as a car and wagon operator initially by the State Rail Authority and then by Rail Corporation of NSW from 1988 until his employment was terminated with effect from 28 November 2007. On 26 October 2007, Mr Baalbaki lodged a complaint of disability discrimination against RailCorp with the Anti-Discrimination Board (ADB). The complaint related to conduct of RailCorp during the course of his employment and to the decision that his employment be terminated. The President accepted for investigation incidents that had occurred within the period from 26 October 2006 to 26 October 2007 but ultimately declined his complaint as lacking in substance. Mr Baalbaki has requested that his complaint be referred to the Tribunal. The complaint cannot be determined unless the Tribunal gives permission (or leave) for it to proceed: Anti-Discrimination Act 1977 (AD Act), section 96. Background 2 Mr Baalbaki injured his back in 2002. In July 2006, his employment was terminated following an incident of verbal aggression towards a supervisor. Mr Baalbaki appealed against that decision to the Transport Appeals Board (TAB). The TAB found that the allegations of misconduct were substantiated but ordered that instead of being dismissed, Mr Baalbaki should be suspended for approximately 3 months and then return to work on the unattached list. In mid 2007, the Workplace Conduct Unit investigated an allegation that Mr Baalbaki had attempted to intimidate a fellow employee, Mr Kanawati, prior to him giving evidence at the TAB hearing. The allegation was substantiated and a decision made to terminate Mr Baalbaki's employment with effect from 5 September 2007. Mr Baalbaki appealed to the TAB against that decision. The Board upheld the decision but gave Mr Baalbaki the option of resigning rather than having his employment terminated. He did not take up that option. 3 On 26 September 2008 the President wrote to Mr Baalbaki advising him that the complaint had been declined as lacking in substance. The reasons for that decision were that: You have provided little beyond mere assertion to support your allegation that RailCorp terminated your employment because of your disability. RailCorp has provided significant evidence to support its position that your employment was terminated due to two instances of substantial misconduct and not because of your disability. RailCorp's decision that your misconduct was serious was upheld by an external appeal body as was the final decision to terminate your employment. Your allegations that RailCorp fabricated evidence to justify its decision to terminate your employment are not supported by the evidence. Principles for granting leave 4 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 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. 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. 5 In a summary, the relevant principles are: (a) if the complaint has been declined as lacking in substance the Tribunal may consider all relevant material and ask whether (i) there is a serious question of fact to be determined (ii) there is a serious question of credit involved; and/or (iii) there is a factual issue that is likely to be affected by evidence in the respondent's possession; (b) on the material available, the claim lacks merit so that it is not in the public interest to permit it to proceed (c) the applicant is able to show a substantial reason for leave being granted which generally includes that the applicant has reasonable prospects of success. Substance of complaint 6 Two allegations. At the hearing Mr Sandroussi, representing Mr Baalbaki, acknowledged that the President of the ADB had confined the complaint to the 12 months prior to the date on which it had been lodged and that the Tribunal did not have power to overturn either that decision or the decisions of the TAB. In those circumstances the complaint was reduced to two allegations: 1. that RailCorp employees had intimidated Mr Kanawati and forced him to change his evidence; and 2. that RailCorp had refused to give Mr Baalbaki light duties when he was working at Flemington and sent him home. 7 Intimidating a witness. Mr Baalbaki alleged that a union representative told him about a conversation he had with Mr Kanawati. Mr Kanawati allegedly told the union representative that on or about 31 January 2007 Mr Graham, Acting Manager, Workplace Conduct Unit, had asked him to change his evidence. This allegation is set out at p 117 of the President's Report in a letter from Mr Baalbaki to the ADB received on 17 December 2007. The verbatim text is as follows: Mr Kanawati was honest on 27 November 2006 when he attended in the witness box and stated that my phone call was friendly and free from any harm. However, RailCorp called Mr Kanawati on 31 January 2007 to question him again about this phone call. They fabricated an accusation and they obliged Mr Kanawati to change his original statement that recorded in the transcript without any objection. By their questions, the conduct unit used their power and influenced Mr Kanawati and urged him to make a different statement that he was intimidated by the way I was talking to him on the phone and by what he heard about me. I heard the advocate of the RailCorp telling Mr Kanawati that if the Chairman asks him why you have changed your statement and you did not complaint about intimidation before; you have to say that I was worry about Jaafar may loose his job. Mr Kanawati admitted to his union that he was not intend to claim for any intimidation but the conduct unit made him with no choice. 8 Mr Baalbaki relies on these assertions as evidence that RailCorp wanted to get rid of him because he had a disability. In the second hearing the TAB dealt with an allegation that Mr Baalbaki had intimidated Mr Kanawati prior to the first TAB hearing. During the course of the second hearing, Mr Baalbaki asserted that "someone" had pushed Mr Kanawati into testifying against him. The TAB's reasons for decision state that: . . . He told the Board that at the time he made the phone call he believed that someone was " pushing Mr Kanawati into saying these things". He then went on to tell the Board that he believed that all of the things that were being levelled against him were because of his workplace injury. 9 The TAB made the following observations and findings: Mr Baalbaki told the Board that he realised that he should not have called Mr Kanawati and that it had not been his intention to intimidate him. . . . That in spite of the fact that Mr Kanawati has given conflicting evidence on at least two occasions, the Board is satisfied that this was due to the fact that he genuinely felt threatened and intimidated by the telephone call he received from the appellant. That when asked to do so by the Board, Mr Kanawati was able to explain in some detail what was said by the appellant, how it was said and what he felt it meant to himself and his family. That by his own admissions, the appellant was angry and upset at the time he made the call to Mr Kanawati. Also, by his own admission, he now understands that he should not have made a telephone call to Mr Kanawati in the first place. That although the appellant believes that this appeal is related to a host of other issues that RailCorp are "persecuting" him for, all of which he states are related to his injury at work, the Board can only deal with the facts that are related to this appeal. The appellant's call to Mr Kanawati caused Mr Kanawati to be intimidated and fearful for his family. As a result of this intimidation, Mr Kanawati has been reluctant to give evidence against the appellant, not only in this matter, but also during appeal No TD/470 of 2006. Given that this telephone call was clearly an attempt by the appellant to influence the outcome of Appeal No TD/470 of 2006, we find that the charge against the appellant is proven. 10 Refusal to provide light duties. When on the unattached list following the first TAB hearing, Mr Baalbaki was assigned to the Flemington Depot. He says that he was not offered any suitable duties even though it had been agreed that he should work for 3 weeks on light duties. He says he was only at Flemington for 2 days before he was ordered to go home because he was seen limping. RailCorp's version of events is that Mr Baalbaki commenced work at Flemington on 29 January 2007. On 13 February 2007 RailCorp says Mr Baalbaki advised his manager that he was suffering from pain when fulfilling the duties of the position at Flemington. In light of this RailCorp removed him from those duties and sought to redeploy him to other suitable duties. Legal framework 11 In order to substantiate his complaint of disability, Mr Baalbaki would have to establish that RailCorp has breached section 49D(2) of the AD Act: (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 (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. 12 For the purpose of these proceedings I have assumed that each allegation constitutes a "detriment" within the meaning of that term in section 49D(2)(d) and that Mr Baalbaki's back injury is a disability as defined in section 49A and section 4. As the defence of unjustifiable hardship in section 49D(4) only applies to decisions to refuse to offer employment or to dismiss an employee, that provision is not relevant to this complaint. 13 So far as is relevant to these proceedings, disability discrimination is defined in section 49B 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 (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (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. 14 I have assumed that Mr Baalbaki is alleging that RailCorp's conduct as outlined above constitutes direct disability discrimination as defined in section 49B(1)(a). Conclusion 15 Intimidating a witness. The TAB did not accept Mr Baalbaki's assertion that a RailCorp employee had sought to influence Mr Kanawati to provide false evidence. While this Tribunal is not bound by findings of fact made by the TAB, those findings are relevant when considering Mr Baalbaki's prospects of proving facts to the contrary if the complaint goes to hearing. Given those findings, the fact that the TAB found the charge against Mr Baalbaki proved and the fact that his only evidence is hearsay, the likelihood of Mr Baalbaki proving his allegation is so remote that it is not in the public interest for this aspect of his complaint to proceed. Of course, even if Mr Baalbaki could prove his factual assertion, to substantiate his complaint he would also have to prove that one of the reasons for the alleged conduct was the fact that he has a back injury. 16 Refusal to provide light duties. Except in relation to decisions to hire or fire an employee, nothing in the AD Act requires an employer to alter the duties of a job or to provide "light work" in order to accommodate an employee with a disability. While there are such requirements in section 49 of the Workplace Injury Management and Workers Compensation Act 1998, this Tribunal does not have jurisdiction to determine whether there has been a breach of that provision: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261and, in the federal context, Cosma v Qantas Airways Limited [2002] FCA 640. For that reason the prospects of Mr Baalbaki establishing that RailCorp failed to provide him with light work and that that failure constitutes a breach of the disability discrimination provisions of the AD Act are extremely slight and it is not in the public interest to allow this aspect of the complaint to proceed. Order Leave is refused.