Equal Opportunity Tribunal of New South Wales CITATION: Seguel -V- Cbi Constructors Pty Ltd [1997] NSWEOT COMPLAINANT: Juan Seguel RESPONDENT: CBI Constructors Pty Ltd NUMBER: 6 of 1997 Judge H G Murrell S.C. ( Senior Judicial Member ) TRIBUNAL: Mr L Lau Mr O McDonald O.A.M. GROUNDS OF COMPLAINT: DATES OF HEARING: 11/14/1997; 11/15/1997 DATE OF JUDGMENT: 03/06/1998 Complainant: In Person LEGAL REPRESENTATIVES: Respondent: Mr D Gardner Cutler Hughes & Harris (Solicitor) JUDGMENT IN FAVOUR OF: Complainant APPLICATION UNDER s.111 OF THE ANTI-DISCRIMINATION ACT 1977 1. BACKGROUND 1.1 Pursuant to section 111(1) of the Anti-Discrimination Act 1977 (the Act) the respondent asks that the complainant's complaints be dismissed on the basis that they are misconceived or lacking in substance, or should not be entertained because the Compensation Court of New South Wales has determined related issues. 1.2 On 19 December 1994 and 15 February 1996 the President of the Anti-Discrimination Board received complaints alleging discrimination against the complainant. The complaints raised issues of physical impairment and race in the area of employment. 1.3 The first document, a letter of 15 December 1994, refers to the complainant suffering from the ill-effects of exposure to hazardous substances in the work place and to the complainant's great disadvantage in his search for redress because of his ill health, financial situation and language difficulties. The second document provides more detail. The complaints are fairly summarised in the complaint summary (forming part of the President's report) in the following way. Mr Seguel was employed by CBI Constructors Pty Ltd between August 1990 and January 1994, where he worked as a trade assistant. He alleges that while employed with the company he was forced to work in an unsafe environment where he came into contact with toxic chemicals. His duties involved working in a confined space where he was constantly covered with dust and smoke from welding which was carried out on a platform above him. He suffered a number of injuries and after 18 months became ill with headaches, nausea, vomiting, skin problems, swollen limbs and abdominal discomfort. He alleges that after becoming ill the company failed to change his working conditions despite his repeated complaints to management and medical reports recommending he undertake light duties. He further alleges that the company took advantage of the fact that he is from a non-English speaking background by insisting that he work in unsafe conditions as they knew he would find it difficult to complain with his limited language skills. He further alleges that when he did complain about his health and working conditions his supervisor would humiliate him by calling him derogatory names such as "Bloody Wog" and "Fucking Chiliean". He states that the company deliberately delayed processing his claim for workers compensation and unlawfully terminated his employment. 1.4 Under section 90(1), on 14 November 1996 the President declined complaints of physical impairment and race discrimination as lacking in substance. Pursuant to section 91, the complainant required the President to refer the complaints to the Tribunal. 1.5 On 8 October 1993 the complainant lodged a complaint with the Human Rights and Equal Opportunity Commission. On 6 February 1995 the President of the HREOC confirmed the decision of the Disability Discrimination Commissioner not to continue to inquire into the allegation of disability discrimination because the subject matter of the complaint could be more effectively dealt with by another statutory body, ie the relevant worker's compensation authority. On 20 May 1996 the Race Discrimination Commissioner discontinued her inquiry into the complainant's complaint of racial discrimination, being of the opinion that the complainant wished to pursue his complaint through the Anti-Discrimination Board rather than through the HREOC. 1.6 On 4 September 1997 the Compensation Court of New South Wales delivered judgment on the complainant's worker's compensation claim against the respondent. The Court awarded the complainant a weekly amount for the period from 3 July to 31 December 1993. In its decision, the Court commented adversely on the complainant's credit. 1.7 The complainant has filed additional material with the Tribunal. 1.8 The additional material makes some reference to victimisation and vilification. Neither of these matters was raised with the Anti-Discrimination Board. There does not appear to be an allegation that victimisation occurred after the complainant brought proceedings against the respondent, as is necessary for a contravention of section 50 of the Act. The President has not considered or referred these matters to the Tribunal. Consequently, the Tribunal has no jurisdiction to consider these issues. 2. RESPONDENT'S CONTENTIONS 2.1 On the section 111(1) application, the respondent advances the following contentions. (1) The complainant's allegations do not disclose a complaint of discrimination on the ground of physical impairment. (2) The documents and statements of evidence filed by the complainant are not capable of establishing that race or physical impairment was a cause of less favourable treatment, or are not reliable evidence (so that there is only a remote possibility of the complainant making out his complaints), or (in relation to the allegedly racist statements) are capable of establishing nothing beyond a personality conflict. (3) The complaints should not be entertained because the subject matter has been considered and determined by the Compensation Court of New South Wales. (4) The complainant should pay the respondent's costs of the application. 3. PHYSICAL IMPAIRMENT 3.1 At the relevant time, it was unlawful to discriminate against a "physically handicapped person" on the ground of "physical impairment." 3.2 Section 4 of the Act contained the following definitions. " Physical impairment", in relation to a person, means any defect or disturbance in the normal structure and functioning of the person's body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment. "Physically handicapped person" means a person who, as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunity to enjoy a full and active life. 3.3 In relation to his physical condition, the complainant's allegations are that he was placed and kept in an unsafe work environment at least partly because of his race, and that the unsafe work environment caused a physical impairment. Because physical impairment is alleged to be an effect of unsafe work conditions (rather than a cause of the complainant being allocated unsafe work conditions), this is a complaint of race discrimination rather than a complaint of discrimination on the ground of physical impairment. Consequently, the complainant's complaints will be treated as complaints of race discrimination rather than physical impairment discrimination. 4. WHETHER ALLEGATIONS OF RACE DISCRIMINATION SHOULD BE DISMISSED UNDER SECTION 111(1) 4.1 The respondent contends that the complainant's allegations are misconceived or lacking in substance in that there is little or no evidence of direct discrimination. It is the respondent's contention that, at most, there is only a remote possibility of the complaint establishing race discrimination. 4.2 There is an issue as to whether section 111(1) may be invoked prior to the commencement of a hearing into the merits: Figueria v St. Vincent's Hospital Limited (Equal Opportunity Tribunal, 7 April 1997). In the present case, it is not necessary to determine whether the Tribunal should follow Figueria . 4.3 In Reyes-Gonzalez v Sydney Institute of Technology (Equal Opportunity Tribunal, 6 March 1998) the Tribunal pointed out that, prior to the commencement of a hearing of the merits, it is difficult if not impossible for the Tribunal to determine whether there may be substance to a complainant's allegations. Particularly in the case of complainants who lack legal representation, it will generally be far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. 4.4 It is possible that the complainant may establish race discrimination in relation to his placement in an allegedly unsafe work environment, or race discrimination in relation to the statements allegedly made to him. At this pre-hearing stage, the Tribunal is not convinced that the allegations are lacking in substance and (assuming that it has the jurisdiction to do so) is not prepared to dismiss the complaints of race discrimination on the basis that they are misconceived or lacking in substance. 4.5 While the proceedings in the Compensation Court of New South Wales undoubtedly addressed many factual matters which would be canvassed or touched upon in the Tribunal's inquiry, the legal issues which the Compensation Court was required to determine are quite different from those which the Tribunal would be required to determine. The Compensation Court was not required to consider whether race was a cause of the complainant receiving less favourable treatment in his employment by the respondent. Because the issues in the proceedings differ, it is the Tribunal's view that the completion of worker's compensation proceedings is not a basis for dismissing the complainant's complaints under section 111(1) of the Act. 4.6 The application is dismissed. There will be no order for costs. 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.