Bacirongo v ACL Pty Ltd [2011] NSWADT 12

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Hearing dates: 7 December 2010 Decision date: 20 January 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1.Leave is granted for the applicant's complaint of race discrimination to proceed. 2.The matter is listed for case conference on 9 March 2011 at 11:45am. Catchwords: LEAVE - race discrimination complaint declined lacking in substance - leave required for complaint to proceed - whether fair and just in the circumstances Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Jones & Anor v Ekermawi [2009] NSWCA 388 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Category: Procedural and other rulings Parties: Isaac Bacirongo (Applicant) ACL Pty Ltd (Respondent) Representation: I Bacirongo (Applicant – in person) Allens Arthur Robinson (Respondent) File Number(s): 101115

REASONS FOR DECISION

Introduction 1Mr Bacirongo complained to the President of the Anti-Discrimination Board that he had been discriminated against by his employer, ACL Pty Ltd on the ground of his race. After arriving as a refugee from the Congo Mr Bacirongo, who describes himself as a pygmy, was a client of ACL. ACL is contracted by the Department of Immigration and Citizenship (DIAC) to deliver the Adult Migrant English Program (AMEP) and the Integrated Humanitarian Settlement Strategy (IHSS) to refugees. In 2005 ACL employed Mr Bacirongo as a casual case worker. In 2007 he was appointed to a permanent position. Mr Bacirongo resigned in March 2010 and is now studying. He said that as a result of the treatment he received at ACL he has been diagnosed with post traumatic stress and depression and has been prescribed anti-anxiety and anti-depressant medication. 2The President of the Board declined the complaint as lacking in substance. The reasons for declining that complaint included that ACL have given plausible, non-discriminatory reasons for the way in which Mr Bacirongo was treated and had, on numerous occasions, treated him more favourably than they were legally required to do. Nevertheless, Mr Bacirongo requested that his 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 for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The onus is on Mr Bacirongo to satisfy the Tribunal that leave should be granted.