CITATION: Lewdanski v Healthscope Limited [2010] NSWADT 287 DIVISION: General Division APPLICANT Lucy Lewdanski PARTIES: RESPONDENT Healthscope Limited FILE NUMBER: 101084 HEARING DATES: 14 September 2010 SUBMISSIONS CLOSED: 14 September 2010 DATE OF DECISION: 2 December 2010 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: LEAVE – allegation of race discrimination in employment – complaint declined lacking in substance – leave to proceed LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Jones & Anor v Ekermawi [2009] NSWCA 388 CASES CITED: Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No 2) [2003] NSWADT 126 APPLICANT In person REPRESENTATION: RESPONDENT J Douglas, solicitor Leave is refused for the following part of the applicant's complaint to proceed: the applicant's complaint alleging that the respondent discriminated against her on the ground of her race by terminating her employment ORDERS: Leave is granted for the following part of the applicant's complaint to proceed: the applicant's complaint alleging that the respondent discriminated against her in relation to the terms and conditions of her employment or by subjecting her to a detriment The matter is listed for case conference on 19 January 2011 at 12 noon. REASONS FOR DECISION Introduction 1 Ms Lewdanski complained to the Anti-Discrimination Board that she had been discriminated against by her employer, Healthscope Limited, on the ground of her race. The President of the Board declined the complaint as lacking in substance. Ms Lewdanski requested that her complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 (AD Act), s 96. The test to be applied is whether it is fair and just in all the circumstances of the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. Background 2 Ms Lewdanski commenced employment at the Hills Private Hospital (owned by Healthscope Limited) in January 2008. She was employed as a registered nurse. She says that until July 2008 no major issues arose. On 2 October 2008 she describes an incident where Ms Halliwell, the theatre manager, raised her voice saying, "Go back into your theatre, you are always whingeing about meal breaks." Ms Lewdanski says that this was an unjustified criticism as she had not been complaining about meal breaks. 3 Ms Lewdanski's account of the background to this incident was that she had been allocated two shifts, one commencing at 7 a.m. and the other commencing at 1 pm. She said that this was not the first time this had happened and she did not say anything about it. However, when the other nursing team members were relieved for lunch at 12.30pm, she thought that somebody would come to relieve her as well so that she would at least have time to prepare for her next theatre at 1 pm. She says that at about 12:40 p.m. she became concerned so excused herself to talk to the nursing unit manager. The nursing unit manager looked at the board and discovered that someone else had been allocated to take over from Ms Lewdanski. The nursing unit manager then told her that she would make arrangements for her to be relieved. Ms Lewdanski said that she was in the process of acknowledging what the nursing unit manager had said when the theatre manager, Ms Halliwell, raised her voice. 4 According to Healthscope, Ms Halliwell was "short" with Ms Lewdanski but did not yell at her. Healthscope concedes that Ms Halliwell should not have spoken so abruptly to Ms Lewdanski, but denies that she did so because of Ms Lewdanski's race. Rather, the theatres were busy and she was under pressure. Healthscope also agreed that there was a mistake in the roster for 2 October 2008 but they do not know why that mistake was made as Ms Halliwell is no longer employed by Healthscope. 5 Ms Lewdanski contacted her union and lodged a grievance on 8 October 2008. As there was no response, she wrote again on 16 October 2008 emphasising that the incident was still affecting her and that she was having to take medication to sleep at night. When attempting to hand deliver that letter to the General Manager, Stephen Gameren, she says that he said to her, "I am the one who signed your termination papers." Ms Lewdanski says that she was shocked by this comment because she was expecting her grievance to be dealt with. She pointed out that the grievance procedure states that, "Until a grievance is determined, work should continue normally in accordance with the custom or practice existing before the grievance arose." After explaining that she wanted her grievance to be addressed, Mr Gameren called Ms Stares, the director of nursing into his office and a meeting was arranged that afternoon to discuss Ms Lewdanski's grievance. Because Ms Lewdanski did not have a support person available, the meeting was postponed. 6 On 17 October 2008 Ms Stares wrote to Ms Lewdanski in response to the discussion on 16 October 2008. Ms Stares invited Ms Lewdanski to attend a meeting to discuss the issues on 22 October 2008. 7 Ms Lewdanski attended work on 18 October 2010 but says she was feeling under a lot of stress and had been experiencing panic attacks. The following day she saw her doctor who said that she was suffering from an acute stress reaction and recommended that she see a psychologist for counselling. That day was the last day Ms Lewdanski attended work. On 20 October 2008, Ms Lewdanski saw Dr Kitty Watt who issued her with a WorkCover medical certificate stating that her employment was a substantial contributing factor to her injury. Ms Lewdanski made a claim under WorkCover and was advised on 3 November 2008 that the claim had been accepted. 8 Johan Schoeman, a clinical psychologist, prepared a report in relation to the applicant dated 28 March 2009. That report contained the following recommendations: Mrs Lewdanski still requires psychotherapy -- the duration of which would be difficult to predict at this stage. It should be realised that she has been sensitised to further trauma in the future and it could be expected that relatively minor events might lead to severe emotional reactions in the future. Given her ongoing symptoms and the associated risks, it would be recommended that she be rendered support in seeking a new position at a hospital not associated with the former workplace. I am of the opinion that Mrs Lewdanski is able to return to work not directly associated with the Healthscope group. 9 At a meeting on 23 February 2009 involving Ms Lewdanski, two representatives from Healthscope and a representative from QBE Insurance, it was agreed that Ms Lewdanski would look for alternative employment. Healthscope requested that Ms Lewdanski attended a meeting on 1 June 2009. She was not able to attend the meeting and asked that it be reschedule to 10 June 2009. The meeting did not take place. 10 By letter dated 15 June 2009 Ms Lewdanski's employment was terminated. Among other things the letter stated that: At a meeting with representatives of the Hills Private Hospital on 23 February 2009, it was clearly stated by your doctor that you would not return to work at any Healthscope facility. This was confirmed in writing to the hospital on a WorkCover certificate received later the same day. . . . Given your refusal to consider employment with Healthscope, all prior offers are withdrawn. You are taken to have terminated your employment from the date of this letter. 11 According to Healthscope, Ms Lewdanski's employment was terminated on the recommendation of her psychologist, not on the ground of her race. If an employee such as Ms Lewdanski suffers a workplace injury, the employer and the worker are subject to the provisions of the Workplace Injury and Workers Compensation Act 1998. Further alleged conduct 12 As well as complaining about the 2 October 2008 incident and being terminated on 15 June 2009, Ms Lewdanski makes the following allegations: 1. I was left in theatre on several occasions when my colleagues were relieved to go on meal breaks. 2. My name was underlined on the allocation board and although I raised the issue with the nurse unit manager Ms Moore, she chose to ignore it and instead made the excuse that she needed to remember when to send me home after my shift. 3. I was given double shift allocations on more than one occasion. This was an unreasonable work condition because it meant that Healthscope did not consider the fact that I, like other nurses in my theatre, needed to have a break in between shifts. 4. I was not provided with information that was vital to effective work performance when my colleagues received the information even though Ms Halliwell knew that I was part of the team that worked in theatre 7. 5. In mid-August to 2008 the nursing unit manager told me that I needed to drop one shift if I wanted to continue doing overtime. I felt pressured to drop that shift when my colleagues were doing more overtime than me. 6. I did not receive a response to the grievance I lodged on 8 October 2008. 13 Healthscope's response to the sixth allegation was that the reason Ms Lewdanski's grievance was not dealt with was because she did not attend work after that time. Ms Lewdanski says that she worked until 18 October 2008 so there was time for her grievance to be dealt with. In relation to allegations five and three Healthscope says that they do not know the reason for this conduct because Ms Halliwell is no longer employed by Healthscope. Healthscope did not provide a response to the other allegations. Consideration of complaint 14 Legislative provisions. If permission is given for the matter to proceed to a hearing, Ms Lewdanski would have to prove her case on the balance of probabilities. Section 8(2) of the AD Act provides that: (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (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 subjecting the employee to any other detriment. 15 What it means to "discriminate against an employee on the ground of race" is set out in s 7: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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. 16 Section 7(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the conduct must be the person's race even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 7(1)(b) defines what is known as 'indirect' discrimination. My understanding of this complaint is that Ms Lewdanski is complaining of 'direct' discrimination. 17 To prove on the balance of probabilities that Healthscope has discriminated against her on the ground of race, Ms Lewdanski would have to prove that: 1. she is a member of a particular race as defined in s 4; 2. the alleged conduct relates to the terms or conditions of her employment or constitutes termination of her employment or any other detriment: AD Act , s 8(2)(a) and (c); 3. Healthscope treated her less favourably than it treats or would have treated another employee not of her race in circumstances which are the same or not materially different: AD Act , s 7(1)(a); and 4. the alleged conduct was on the ground of Ms Lewdanski's race: AD Act , s 7(1)(a). 18 Race. Ms Lewdanski nominated her race as Kenyan. 19 Termination. There is no dispute that Healthscope terminated Ms Lewdanski's employment. The termination followed the acceptance of Ms Lewdanski's WorkCover claim. Ms Lewdanski met with representatives from Healthscope and QBE Insurance on 23 February 2009. Ms Lewdanski's psychologist reported that she was not able to continue working for Healthscope. It was agreed that Ms Lewdanski should look for alternative employment. In those circumstances it is highly unlikely that a Tribunal hearing this case would be satisfied that even one of the reasons for terminating Ms Lewdanski's employment was her race. This part of her complaint lacks substance and it would not be fair or just for it to proceed. 20 Terms and conditions of employment. Healthscope did not dispute that the remaining conduct relates to the terms and conditions of Ms Lewdanski's employment and/or that it constitutes a detriment. 21 Differential treatment. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of her race in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to the applicant, the Tribunal would have to rely on a hypothetical person in a comparable situation. In those circumstances, the differential treatment and causation enquiries merge because the Tribunal could only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person of another race would have been treated by determining that race was a reason for that different treatment: Dutt v Central Coast Area Health Service [2002] NSWADT 133; Martin v McKensey (No 2) [2003] NSWADT 126). 22 Causation. The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way she was treated must be her race: AD Act, s 4A. There is no need to prove that a respondent intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge, means that it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case. Healthscope submitted that it was significant that even though Ms Lewdanski was legally represented when her complaint was before the Board, the initial complaint, alleging the same facts, was a complaint of disability discrimination. On 6 November 2009 Ms Lewdanski's lawyer wrote to the Board saying: In addition to the disability discrimination mentioned in our earlier letter, the complainant wish (sic) also to stress that she was being discriminated by the company due to her race, colour, nationality, descent and ethnic background. . . . The complainant believes that the termination by the company was done so on the basis of the complainants race, colour, nationality, descent, ethnic (sic) whilst in the company's employment which is by design discriminatory in nature. 23 By letter of 13 November 2009 Ms Lewdanski's lawyer confirmed that the entire complaint, not just the termination of her employment, was on the ground of race. 24 Healthscope has not provided a response to all Ms Lewdanski's allegations. The only explanation they have given for the way Ms Halliwell treated her was that the theatre was busy and she was under pressure. While that may be a partial explanation for her conduct, depending on the evidence, this is a case where an inference may be drawn that race was at least one of the reasons for the way Ms Lewdanski was treated. In all the circumstances, that part of the complaint that does not involve the termination of her employment has sufficient substance to make it fair and just for it to proceed. Order Leave is refused for the following part of the applicant's complaint to proceed: the applicant's complaint alleging that the respondent discriminated against her on the ground of her race by terminating her employment. Leave is granted for the following part of the applicant's complaint to proceed: the applicant's complaint alleging that the respondent discriminated against her in relation to the terms and conditions of her employment or by subjecting her to a detriment. The matter is listed for case conference on 19 January 2011 at 12 noon. 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.