Equal Opportunity Tribunal of New South Wales CITATION: Herring -V- South Eastern Sydney Area Health Service Anor [1998] NSWEOT COMPLAINANT: Cicero Herring RESPONDENT: South Eastern Sydney Area Health Service Royal Hospital for Women NUMBER: 1 of 1998 Mr Reginald Bartley AM ( Judicial Member ) TRIBUNAL: Ms Lolita Farmer OAM Mr Milton Luger GROUNDS OF COMPLAINT: DATES OF HEARING: 06/30/1998; 07/01/1998; 07/02/1998 DATE OF JUDGMENT: 08/21/1998 Complainant: In person LEGAL REPRESENTATIVES: Respondent: Mr K English South Eastern Sydney Area Health Service JUDGMENT IN FAVOUR OF: Respondent On 22 February 1996 Mr Cicero Herring (the "Complainant") lodged a complaint with the Anti-Discrimination Board against the Royal Hospital for Women to whom he had applied for a position and in 1987 was his former employer. The Royal Hospital for Women is now under the administration of the South Eastern Sydney Area Health Service (each being the Respondents to this application). The application was lodged on the grounds that he was victimised contrary to section 50(1)(a) of the Anti-Discrimination Act. Section 50(1)(a) provides: It is unlawful for a person ("the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act . Neither party in this matter was legally represented, before the Tribunal. Facts In 1987 the Complainant was employed by the Royal Hospital for Women then under the control of the Benevolent Society of New South Wales. The Complainant's employment was terminated on 8 March 1988. Following this termination, he made a complaint of "race and sex discrimination" against his employer under the Anti-Discrimination Act 1977 to the Anti Discrimination Board. Eventually the matter was dismissed by the Equal Opportunity Tribunal. Following this the Complainant appealed to the Supreme Court, and on 23 May 1993 the appeal was dismissed. On 9 November 1995 an advertisement appeared in the Sydney Morning Herald seeking applicants for a position of Enrolled Nurse-Gynaecology Ward at the Royal Hospital for Women. It required applications should be forwarded to Ms D Thomas, Director of Nursing Royal Hospital for Women, Private Bag 1, Paddington 2021. 0n 16 November, 1995 the same position was re-advertised in accordance with the Respondent's standard procedure in the Sydney Morning Herald and applications had to be forwarded to Ms H Gunn, Acting Director of Nursing. The Complainant answered each advertisement. The Hospital acknowledged it received both applications. In his application in response to the first advertisement, the Complainant said "I had (sic)worked at this hospital in 1985, until termination of my employment there. It is hope (sic)that my application will be considered, disregarding those events, but on the base's(sic) of my work performance". The Complainant on 8 February 1996 was advised by Helen Gunn, Deputy Director of Nursing for the Royal Hospital for Women, as follows: "Thank you for your application for the above mentioned position. Unfortunately on this occasion you have been unsuccessful. Thank you for your interest in applying for the position." On receipt of this letter, the Complainant on 13 February 1996 requested an explanation of why his application had been unsuccessful. On 16 February Helen Gunn, on behalf of the Second Respondent, replied as follows: "I refer to your letter of 13th February 1996 seeking an explanation for your unsuccessful application to the position of Enrolled Nurse-Gynaecology Ward of this Hospital. Please be advised that your application was culled in the initial phase of the recruitment process on the basis that: 1. Whilst meeting the essential and desirable criteria, of the two referees nominated one was overseas and not relevant to your profession. The second lacked sufficient detail. 2. Concern was raised that your two referees were for the period 1969-71 and 1993-1995 whilst no contact was made available at previous Hospitals relevant to enrolled nurse employment. 3. Given your letter of 20th November 1995 the matter was referred to the Human Resources Branch for clarification and advice received that it was inappropriate for you to be interviewed on this occasion. I trust the above information resolves your enquiries." On 22 February 1996 the Complainant lodged a complaint with the Anti-Discrimination Board of New South Wales against the Respondents. His application concluded that "In view of my making a complaint against the Royal Hospital for Women while under the management of the Benevolent Society of New South Wales, I am being victimised because of that complaint, and being denied employment at the Royal Hospital for Women mainly on that ground , which is in violation of section 50 of the Anti-Discrimination Act of 1977". During the investigation conducted by the Anti-Discrimination Board, Mr English, Manager Workforce Relations, was asked by the Board's Investigation Officer, Mr David Hillard, what the Hospital meant by the words "work environment would be inappropriate" in the decision by the Interview Panal not to offer an interview to the Complainant. On 19 November 1996 the South Eastern Sydney Area Health Service replied: "The Gynaecological Ward is a difficult area to work within given the nature of conditions that are experienced by the patients cared for in the ward .Staff need to be able to adapt to patients needs and to foster an environment which is conducive to the well being and harmony of patients and staff alike. Whilst the Nursing Unit Manager of the Ward and the Director of Nursing of the Hospital have resigned since Mr Herring's unsuccessful complaint against the Hospital there are still a significant proportion of the staff employed in the ward that were engaged at the time Mr Herring initiated his original appeal. The Area Administration on receipt of the facts surrounding the case and taking into consideration the primary factor of patient care and their well being held the view that given Mr Herrings less than amicable departure from the hospital it would be inappropriate to place him in the same environment which saw the cause of the initial action. On the basis of the above and given the inappropriateness of his referees the decision to cull him from the selection process was taken." Another letter which assumed some importance for the Complainant was a letter from Mr K.E English, Associate Director of Employment Relations for the Area Health Service to the President of the Anti-Discrimination Board of NSW dated 21.10.97 wherein he said: "I refer to a conciliation conference set down for Monday 20 October 1997 to discuss a complaint lodged by Mr Cicero Herring, Complaint Reference number 96/9001. It is noted that the conference was cancelled by the Board due to Mr Herring's demand that he be allowed to tape record the proceedings. Whilst this was a most unfortunate development and extinguished the opportunity for the parties to confer, the Area retains the view that this matter can be conciliated to resolve Mr Herrings concerns. In proposing a solution, it is noted that Mr Herring has appealed a previous Decision of the Equal Opportunity Tribunal relevant to this claim. That appeal surrounded his complaint against the Benevolent Society of New South Wales in respect to the Royal Hospital for Women to the Supreme Court of New South Wales in 1993. The appeal was heard by Justice Ireland wherein he dismissed the matter with costs. Notwithstanding the above, the Area Health Service is prepared to undertake the following: 1. Distribute to all its hospital and facility nursing administration Mr Herring's resume as an enrolled nurse and to facilitate his potential employment. Any such appointment being on the basis of merit and in accordance with equal opportunity principles. 2. Distribute where advised to other metropolitan Area Health Service Human Resources Directors, Mr Herring's resume with a covering letter requesting that it be forwarded to their respective nursing administrations. It is noted that enrolled nurses are in high demand both within the public and private sector and therefore ample employment opportunities should be available to Mr Herring. Your advice as to the acceptance of this offer by the Complainant in due course would be appreciated." Determination The Complainant has not produced any direct evidence to support his claim under Section 50(1)(a) but relies on what he submits is the indirect evidence shown by the letters set out above . In submissions and evidence he says he draws the inference he was discriminated against under Section 50(1)(a) by the fact that the Hospital says, in effect, to interview him was inappropriate. This was due to the fact he had taken prior proceedings under the Anti-Discrimination Act. He also says he further draws the inference that he was discriminated against because while the Area Health Service offered to circulate his resume to various hospitals and other health services, at the same time they would not employ him. Further in the letter from the Area Health Service to the Anti-Discrimination Board on 27 October 1997 (which was written after he made his application to the Board) the Complainant says that also shows discrimination because the Area Health Service did not notify him directly of this offer of assistance. He also says that because the Hospital called in the Human Resources Section to deal with his application, this shows that he was discriminated against on the basis his application was treated differently from those of the other applicants for this position. In the Tribunal's view, the Complainant's having raised the fact that he had previously been employed by the Hospital in his application and his employment had been terminated by certain events made it proper for the Respondents to consider those events when dealing with his application. One further matter to be mentioned is the fact the Complainant claims he was better qualified than the person placed in the position, and, when she left, the person who replaced her. In respect of the first person ( who was one of the four who applied for the job at the same time as he did) the Hospital relies on its records to show the selection committee were of the view the person selected was the most qualified person for the job (notwithstanding they did not interview the Complainant who was culled). The Tribunal accepts that. When this person eventually left the Hospital, the position was filled by a displaced employee, who had Priority One Employment. Such priority was in accordance with the Premier's Department Memorandum and Department of Health Circular 96/16. The exhibits in this matter total 246 pages. The Tribunal has read all of them, listened carefully to the evidence produced by the Complainant and the Respondents and their addresses, and is not satisfied that the Complainant has proved his case. The Tribunal is of the view the facts surrounding the 1987 application under the Anti-Discrimination Act, the Hospital's concern over maintaining an environment which was conducive to the well being and harmony of the patients and staff, and the unsuitability of the referees submitted by the Complainant resulted in his not being granted an interview for the advertised position. He was not discriminated against because he had previously brought proceedings under the Anti-Discrimination Act against the Benevolent Society of New South Wales which was running the hospital in 1987. THE COMPLAINT IS DISMISSED. NO ORDER AS TO COSTS Dated this day of 1998 ................................... ..................................... ...................................... R J Bartley AM L Farmer OAM M Luger Judicial Member Member Member 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.