A -V- B [1997] NSWEOT

Equal Opportunity Tribunal of New South Wales

CITATION: A -V- B [1997] NSWEOT

COMPLAINANT: A

RESPONDENT: B

NUMBER: 70 of 1995

Mr G Ireland ( Judicial Member ) TRIBUNAL: Ms L Farmer O.A.M. Ms L Mooney

GROUNDS OF COMPLAINT:

DATES OF HEARING: 11/03/1997; 11/04/1997; 11/05/1997; 11/06/1997; 11/07/1997 DATE OF JUDGMENT: 12/18/1997

Complainant: Ms J Keys (Counsel)

LEGAL REPRESENTATIVES: Respondent: Mr L McKay, Crown Solicitors Office Ms C Ronalds (Counsel)

JUDGMENT IN FAVOUR OF: Respondent

This is an application made by the Respondent under Section 111(1) of the Anti Discrimination Act 1997 as amended (The Act) in which the Respondent seeks an order from the Tribunal for the complaint to be dismissed on the ground that it lacks substance. The Application is made at the close of the Complainant's evidence. The evidence at this stage includes a copy of the report made by President of the Anti Discrimination Board to the Tribunal, a voluminous statement of the Complainant to which is attached numerous documents referred to in the statement and a copy of a letter from the Complainant to the Registrar of the Equal Opportunity Tribunal dated 31 January 1996 which is not part of the President's Report to the Tribunal. The Complainant has been cross examined by the Respondent. One other witness was called by the Complainant, a senior teacher who supervised the Complainant in her earlier period of employment with the Respondent. The Respondent, by consent, interposed one witness during the Complainants evidence, a senior teacher who supervised the Complainant during a later period of her employment. The Respondent has filed statements of a number of members of the teaching staff and of management of the Respondent. At this stage of the inquiry, the Tribunal has not admitted those statements into evidence nor have the witnesses been examined. The inquiry by the Tribunal into the complaint arose from a reference from the President of the Anti Discrimination Board on the 3 July 1995, in accordance with Section 91(1)(2) of the Act. The President had inquired into a complaint made to the Anti Discrimination Board by the Complainant on 9 October 1992, in which the Complainant sought the assistance of the President to have her reinstated as a teacher in the Respondent organisation, following her suspension on 9 October 1992 from her position as a teacher of biological techniques. The President had investigated the complaint and on 19 December 1994 the President advised the Complainant that he had formed the view that the complaint was lacking in substance and he declined to entertain it further. The Complainant then requested that the complaint be referred to this Tribunal for inquiry. A number of interlocutory applications were made by the parties to this Tribunal, prior to the inquiry commencing on 3 November 1997. The Complainant has made several attempts to specify the nature of the complaints to be inquired into by the Tribunal and following directions given by the Tribunal in its decision of 13 June 1997, on the first day of the hearing the Complainant filed Points of Claim which set out particulars of the Claim and the allegations of discrimination which supports the Claims. The Tribunal in the interlocutory applications, has ruled that it has no jurisdiction to inquire into a claim of victimisation under Section 50 of the Act and has also ruled that the period of the complaint is confined to events occurring between April 1992 and 9 October 1992 with the proviso that the Complainant is entitled to support contentions about the allegations of discrimination during that period, with background material commencing in 1988. At the commencement of the 2nd day of the hearing, on the application of the Complainant and with the consent of the Respondent, the Tribunal directed, under Section 110A(1) of the Act, that the identity of the parties be suppressed and not identified or disclosed. Background The Complainant is a female and was born in China of Russian parents and describes herself "an employee of non-English speaking background (NESB)". The Complainant was appointed to the full time teaching staff of the Respondent in January 1985 to teach Biochemistry. For two years prior to that time, the Complainant held a part-time teaching position with the Respondent. The Complainant taught food biochemistry to applied chemistry students from 1985 - 1989, until that subject was modified for the new Associate Diploma Courses introduced by the Respondent. There were no complaints by staff or students in relation to the Complainant's teaching from 1985 - 1989. By 1986 the Complainant had completed a graduate diploma in teacher education and in that year she obtained a project fellowship from the Respondent, to study developments and new techniques in biochemistry and biotechnology fields and in educational and teaching practices in the United Kingdom, Sweden and West Germany. In 1989 the then Assistant Principal retired from the Respondent and an Acting Assistant Principal was appointed (who for convenience, in view of the suppression order will be called "Mr X"). By September 1991, Mr X had been appointed the Principal of the section of the Respondent in which the Complainant was employed. In June 1990 Mr X produced a file to the Complainant which contained a number of complaints about the Complainant. After the intervention of the Equal Opportunity Officer of the Respondent and a representative of the Teachers Federation it was agreed by the two Acting Assistant Principals of the Respondent that it was not appropriate to keep a file of complaints without the knowledge of the Complainant and it was agreed that more than half of the contents of the complaint file would be destroyed. These documents were destroyed by the Acting Assistant Principal in the presence of the Complainant. After that there were no complaints about the Complainant in the first semester of 1991. In April 1991 two students informed the Complainant that a teacher had requested them and other students to write a complaint letter about the Complainant. The Complainant reported this conversation to the Acting Assistant Principal. In 1990 a new Manager of the Biochemistry laboratory was transferred from the Level 6 Instrumentation laboratory to the Level 7 Biochemistry laboratory. The Complainant at that time was a teacher in the Level 7 Biochemistry laboratory. The Complainant alleges that in 1990 and 1991 the new Manager of the Level 7 Biochemistry interfered in the teaching of the practical work in Cellular Biochemistry which was introduced and taught by the Complainant for the new Associate Diploma Course. The Complainant alleges that the new Manager tried to alter the practical work to his standards and that he behaved in a threatening manner to her in classes. The Complainant reported this conduct to the then Assistant Principal and she states that no action was taken nor was she consulted about the intention to transfer her to the Level 6 laboratory where she was required to teach Cellular Biochemistry and Laboratory Instrumentation in the Instrumentation Laboratory. The Complainant further alleges that she advised the Acting Principal at the time of the transfer that it would create problems as the laboratory on Level 6 lacked all the necessary Biochemical equipment and reagents to effectively run classes and that the technicians in the laboratory were not familiar with the advanced biochemical and immunological techniques taught in that subject. The Complainant complained that her transfer was inappropriate. She states that she was assured that all the equipment and resources from the Level 7 laboratory would be available for her classes. She was requested to submit detailed requirements in August 1991 so that the requirements could be obtained for her to teach the Cellular Biochemistry subject in 1992 in the Instrumentation Laboratory on Level 6. The Complainant alleges that in February 1992 only the first part of the course was prepared by the Senior Technical Officers on Level 6 and that there were no resources left in the Level 6 laboratory for the second part of the Course, the Immunology Section. At the suggestion of the Senior Head Teacher, in April 1992, the Complainant requested a special allocation of funds from the Assistant Principal for the Immunology course, but this request was rejected. The Complainant states that she then had to arrange alternative practical demonstrations and visits to industrial laboratories to enable her class to cover the Immunology topics prescribed by the syllabus. By this time a number of further complaints about the Complainant had been received by the management of the Respondent. The relationship between the Complainant and some of her fellow teachers, her senior teachers and management in the Respondent had deteriorated. The complaints were critical of the Complainant's performance in the preparation of her courses, in her attitude to her assistants and to her senior teachers and to management and the complaints included complaints from some students who had expressed concern that they were not able to benefit from her tuition. The Respondent instituted processes for monitoring the performance of the Complainant. These attempts were resisted by the Complainant as she considered that the processes were unfair and that those who were monitoring her were biased against her. The situation culminated in the decision taken by management by the Respondent to charge her with breaches of discipline under sections of the Teaching Services Act 1980 and on 9 October 1992 she was served with a notice from the Respondent advising her of fourteen charges including claims of misconduct, unlawful disregard of lawful orders, negligence and inefficiency. Particulars were given of the fourteen charges. The Complainant was suspended from duty on full pay. In accordance with the regulations under the Teaching Services Act 1980, a Prescribed Officer was appointed to investigate the charges and in this inquiry, the Complainant was represented by Counsel. The Prescribed Officer completed his report on 11 May 1995. He found that nine of the charges should be dismissed and five charges should be upheld. His report contains the following conclusion "it is clear from the material I have considered that there have been ongoing difficulties between (the Complainant) on the one hand and almost every other member of staff, both teaching and non-teaching. It is also equally and patently clear to me that there has been a cumulative deterioration in administrative and professional conduct and leadership in all levels that has resulted in an atmosphere that is not conducive to teaching and learning. As to what part the ongoing restructuring and movement of any personnel had to do with this deplorable state of affairs I am unable to state, but what I am able to say is that the situation as presently exists is not conducive to the good order and management of the section and urgent action needs to be taken to resolve it." The Prescribed Officer recommended that the Complainant be reprimanded on one of the charges that was upheld and that on each of the other four charges that were upheld, that she be reduced in salary for twelve months. The Complainant appealed against that decision to the Government and Related Employees Appeal Tribunal (GREAT). GREAT handed down its decision on 16 April 1997 and decided to set aside the decision to reduce the appellant in salary and in lieu gave the Complainant a choice to tender her resignation or be dismissed immediately. In its conclusion the Tribunal stated "however, because we are of the view that the administration of this matter by the Respondent has not been blameless, and that more could have been done on an earlier time to resolve the matter, we have decided that the appellant should be given the option of resigning her employment, rather than being dismissed out of hand". The Complainant sought to appeal against the GREAT decision to the Supreme Court of NSW. The application for the appeal was not granted. The Complainant has also brought an application to the Industrial Relations Commission in NSW. The Commission found that in view of the proceedings before GREAT that it had no jurisdiction to consider the matter. The Complainant did not elect to resign from her employment and as a consequence the Respondent has dismissed her. In its decision of 13 June 1997, this Tribunal determined that as the nature of the inquiry sought by the Complainant under the Anti Discrimination Act 1977, before this Tribunal, does not require a review by this Tribunal of the GREAT decision, this Tribunal has jurisdiction to continue it's inquiry into the complaint in accordance with the Act. The relevant provisions of the Act The Complainant has stated that she relies on allegations of direct discrimination and does not rely on the provisions of the Act which relate to indirect discrimination. The events on which the allegations are based, occurred in and prior to 1992, at a time when the relevant provisions of the Act were different to those provisions of the Act as amended in 1994. The relevant provisions of the Act as they apply to the allegations of direct discrimination in the complaint are as follows: Racial discrimination 7.(1) A person discriminates against another person on the ground of his race if, on the ground of - (a) his race; (b) a characteristic that appertains generally to persons of his race; or (c) a characteristic that is generally imputed to persons of his race, he - (d) treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different race; or (e) segregates him from persons of a different race. Discrimination against applicants and employees 8.(2) It is unlawful for an employee to discriminate against an employee on the ground of his race - (a) in the terms or conditions of employment which he affords him; (b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing him or subjecting him to any other detriment.