CITATION: Awad v Sydney West Area Health Service [2009] NSWADT 49 DIVISION: Equal Opportunity Division APPLICANT Sami Awad PARTIES: RESPONDENT Sydney West Area Health Service FILE NUMBER: 081138 HEARING DATES: 24 February 2009 SUBMISSIONS CLOSED: 24 February 2009 DATE OF DECISION: 5 March 2009 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Leave application, credibility LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Awad v Sydney West Area Health Service [2005] NSWADT 39 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT V Morales, agent ORDERS: Leave is granted. REASONS FOR DECISION Introduction 1 Mr Awad complained to the Anti-Discrimination Board (ADB) that his failure to be appointed to two positions for which he applied constituted victimisation in breach of the Anti-Discrimination Act 1977 (AD Act). The President of the ADB declined the complaints as lacking in substance. When that happens, section 96 of the AD Act requires the applicant to obtain the Tribunal's permission before the complaints can proceed. 2 Mr Awad has been a pharmacist at Westmead Hospital since 1998. In July 2007 he applied for the position of Chief Pharmacist, St Joseph's Hospital. Seven people applied for the job but none was interviewed and the recruitment action for the position was cancelled. The second application, made in December 2007, was for the position of Clinical Pharmacy Coordinator at Nepean Hospital. Mr Awad attended an interview for that position on 20 December 2007. At the time of making his complaint in February 2008 Mr Awad had not been provided with any information about the outcome of that application. Mr Awad says that he is suitably qualified for both positions and that it was negative references from Mr Ng, Director of Pharmacy at Westmead Hospital, that led to him being unsuccessful. Mr Ng denies giving any information to either panel in relation to Mr Awad. Mr Awad has previously made several complaints of race discrimination against Mr Ng. 3 The Anti-Discrimination Board accepted for investigation the allegation that Mr Ng had provided negative comments about him in relation to reference checks. Mr Awad also pointed to various procedural irregularities which he said affected the credibility of the selection panels. The first was that the panel for the Nepean Hospital position was comprised only of two members not including an independent member. He also said that he had not received any feedback in relation to his application for the position at Nepean Hospital. As these matters were not accepted by the President as being part of Mr Awad's complaint, the Tribunal does not have jurisdiction to determine whether to grant leave in relation to those allegations: AD Act, section 95(3). 4 The President subsequently declined the complaint as lacking in substance. The reasons for that decision were: In relation to the application to St Joseph's Hospital you have not provided any information other than conjecture, that you were treated less favourably (victimised) than the other six applicants who applied for the position of Chief Pharmacist In relation to the application to the Nepean Hospital, other than allegation you have not provided any evidence or specific information demonstrating that he has been treated less favourably (victimised) in the recruitment for the Clinical Pharmacy Coordinator position The respondent has provided information, which if shown to be an accurate representation of the facts, demonstrates that they have treated you the same as all the other applicants for both positions. Approach to leave applications 5 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]: 17 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. 6 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. Proving victimisation 7 Victimisation is made unlawful by section 50: (1) 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, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.' 8 In order to substantiate his complaints of victimisation, Mr Awad would have to establish that: 1. the respondent has subjected him to a detriment; 2. that detriment was on one of the grounds set out in sub-paragraph (a) to (d) of section 50(1). 9 Although Mr Awad did not specify which provision of section 50 he was relying on, I assume that he is relying on section 50(1)(a) and/or section 50(1)(c). The Anti-Discrimination Board acknowledged that Mr Awad had made complaints about his employer during the period from November 2001 to 2005. One complaint which was heard by the Tribunal in 2005 was not substantiated: Awad v Sydney West Area Health Service [2005] NSWADT 39. 10 I have also assumed, for the purposes of these proceedings, that not being the successful candidate for either of the positions for which he applied constitutes a detriment under section 50. The remaining questions are whether Mr Ng gave a negative reference to either panel, if so, whether Mr Awad was unsuccessful because of those negative references and whether those negative references were given because of the previous complaints Mr Awad had made against SWAHS. Evidence that Mr Ng gave negative references 11 The evidence relied on by Mr Awad is summarised below with SWAHS's response in italics. The relevant passages are set out verbatim apart from the words in brackets. 12 St Joseph's Hospital position. 1. "On 7 June, I went to Mr Ng's office asking him if he has been called by anyone from St Joseph's Hospital regarding a job application, then he got to panic and said no, then I told him that I was told he was contacted then he got angry and said they are stupid they are not supposed to tell you, then I realised what is going on then I started crying and did requested two requests from him I said can please provide a honest professional feedback in the future if you get called about other jobs, I do not know which request did he refuse?" Mr Ng provided an unsigned statement saying: I was not aware that Mr Awad was applying a job at St Joseph Hospital until he approached me and asked me to provide a favourable reference about him to the Director of Pharmacy at St Joseph Hospital. I declined his request and explained to him about the inappropriateness of such action. I had no communication with any other person about Mr Awad's application. 2. A letter dated 7 June 2007 to Mr Awad signed by Lorraine Koller, Deputy Director of Pharmacy, Westmead Hospital saying that: "As per our conversation earlier today, where you asked whether I had been contacted by a convenor of the interview panel regarding a referee checked for a position you have applied for at St Joseph's Hospital. I was contacted by a person from St Joseph's Hospital who I presumed was the convenor. I asked whether the applicant had nominated me as the referee as I had not been informed by the applicant. I was informed that I was not nominated and therefore stated that I did not wish to provide a referee check without the prior knowledge of the applicant. I suggested that the convenor contact the applicants directly to discuss the nominated referees." SWAHS did not respond to this letter as it was tendered during the leave hearing. 13 Nepean Hospital position. Mr Awad says that the coordinator of the panel, Ms Samson, answered "yes" when Mr Awad asked her if she contacted Mr Ng in relation to his application . . . Ms Samson says she told Mr Awad that he was unsuccessful because of his inability to appropriately answer the questions through the interview. She agrees that she spoke to Mr Awad by phone advising him that he had been unsuccessful using words to the effect "the position was offered to the successful applicant and the letter will be sent to the unsuccessful applicants." Ms Samson denies that Mr Awad asked her whether she had contacted Mr Ng. Mr Ng said, "I had no knowledge of Mr Awad's application (to the Nepean Hospital)" Ms Samson did not contact me about his application. The claim is absolutely untrue. Evidence that any negative reference was given because of previous complaints 14 Mr Awad's evidence. 1. Firstly, the person who has been given many bad reference is the same person who lie at original complaint of racial discrimination was against him, has threatened me of attacking my children if further complaint has been lodged." Secondly, he or she is neither my referee nor is my direct supervisor of whom I have not given any consent for him to be contacted at any time. Thirdly, the information that he or she is providing about me: (a) that I do not have a good communications skills due to my non English background (b) I do not take responsibility. "SWAHS provided a copy of my application form but was unable to explain how did not I fulfil the selection criteria and among the 10 applicants why was the only person with an Asian surname was the only person to fulfil the criteria." The allegation that Mr Ng threatened to attack his children if further complaints were lodged was first made in 2005. The respondent investigated this allegation and found that it had not been substantiated. Conclusion 15 The Tribunal's role is not to determine whether the President's reasoning or conclusion about the substance of the complaint is correct, rather it is to decide for itself whether there is, for example, a substantial reason for the complaint to proceed. Mr Ng alleges that he had two conversations with Mr Ng and one with Ms Samson. The substance of those conversations were that: (a) Mr Ng threatened to attack his children if he lodged any further complaints; (b) after being told that Ms Samson had contacted him, Mr Ng "got angry and said they are stupid they are not supposed to tell you"; (c) Ms Samson admitted that she had contacted Mr Ng as a referee in relation to the Nepean Hospital position. 16 Both Mr Ng and Ms Samson deny the content of these conversations. Mr Awad said that he was not lodging a complaint about the first conversation however he did not say that he was not relying on it to support his claim of victimisation. If a Tribunal found that the conversations occurred as alleged by Mr Awad, that evidence may support an inference that Mr Awad's lack of success for one or both positions was based on Mr Ng's negative references which, in turn, were prompted by the fact that Mr Awad had previously complained about allegedly discriminatory conduct. 17 Mr Awad's credibility has been directly challenged by Ms Samson and Mr Ng. This is not a case where the factual differences can be explained by hazy recollections or individual perceptions of what happened. Either Mr Ng and Ms Samson said the things that Mr Awad attributed to them or they did not. In my view, given the serious allegations Mr Awad has made against SWAHS it is appropriate for the Tribunal to hear and determine his complaints of victimisation so that these allegations can be tested and resolved. However, given the vehemence with which these allegations are denied, Mr Awad needs to be aware that if the Tribunal is satisfied that Mr Awad has not been telling the truth, and concludes that his complaint is vexatious or an abuse or process, it may exercise its discretion to award costs against him. I would urge Mr Awad to obtain free legal advice from the duty solicitor who attends the Tribunal from time to time before deciding whether to go ahead with this complaint. Order Leave is granted. 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.