Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Fletcher v TNT Australia Pty Ltd [2011] NSWADT 175 Hearing dates: 5 July 2011 Decision date: 19 July 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the Applicant's complaint of race discrimination against the Respondent to proceed Catchwords: LEAVE - complaint of race discrimination in employment declined as lacking in substance by President of Anti-Discrimination Board - whether fair and just for it to proceed Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Jones and Anor v Ekermawi [2009] NSWCA 388 Martin v McKensey (No 2) [2003] NSWADT 126 O'Callaghan v Loder [1983] 3 NSWLR 89 Category: Interlocutory applications Parties: Robin Fletcher (Applicant) TNT Australia Pty Ltd (Respondent) Representation: Mr R Fletcher (Applicant - in person) Ms L Brown (Respondent - agent) File Number(s): 111040 REasons for decision Background 1EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): The issue in these proceedings is whether the Tribunal should give Mr Fletcher permission for his complaint of race discrimination, under the Anti-Discrimination Act 1977 ( AD Act ) to proceed. The complaint, which is against his former employer TNT Australia Pty Limited, was declined by the President of the Anti-Discrimination Board. Leave to proceed necessary 2The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint is frivolous, vexatious, misconceived or lacking in substance. In this case I have decided to refuse leave for each of the complaints to proceed. Background 3Mr Fletcher is from Brazil. He started working with the Respondent as a dockhand in 2005 and resigned in August 2010. The period covered by the complaint is 21 July 2009 to 21 July 2010. I have not taken into account several allegations which relate to events prior to that period including that Mr Fletcher was underpaid and that the Compliance Manager spelt his name incorrectly in a letter sent to him. Because the complaint is against Mr Fletcher's former employer, I have disregarded any complaint about the conduct of union officials or anyone else who was not employed by the Respondent at the relevant time. Denial of payment for parental leave 4When he inquired about his entitlement to paid paternity leave, Mr Fletcher says that he was initially told that he was entitled to one weeks' paid leave. However, after submitting the relevant form, he was told that he was not entitled to paid leave. According to Mr Fletcher, work colleagues told him that they had received paid paternity leave. 5On 10 February 2010 Mr Fletcher attended a meeting with managers at which he was told that he was not entitled to paid paternity leave. According to the Respondent, as a dockhand, Mr Fletcher was covered by the Enterprise Agreement TNT Australia Pty Ltd - TWU (Federal) Heads of Agreement 2008-2010 . While the Respondent's Leave Policy entitled employees to paid paternity leave, the Policy states that: "Where an employee is covered by a Workplace or Enterprise Agreement, this policy will not apply to the extent that it provides leave entitlements that are more generous than the National Employment standards." The effect of this provision is that the Respondent's paid paternity leave entitlement (which is more generous than the National Employment Standards) does not apply to any employee covered by the Enterprise Agreement, including Mr Fletcher. Short pay 6Mr Fletcher alleged that for about a year, the Respondent was short paying him every week by $60. Mr Fletcher did not provide the dates or other details of the alleged short payment. The Respondent says that this matter was investigated and the issue was rectified. According to the Respondent, if Mr Fletcher still has a dispute, the appropriate course is to obtain a remedy through Fair Work Australia. Opportunities for training, promotion, overtime, flexible hours etc Courses 7According to Mr Fletcher, he asked his manager to identify which employees were eligible to enrol in company-sponsored courses. The manager's reply was allegedly that it would depend on who was regarded as suitable. Mr Fletcher interpreted this comment to mean that everyone was not equal. Mr Fletcher did not say who made this comment or when it was made. Promotion 8Mr Fletcher, who had been working Tuesday to Saturday, applied for a dockhand role on the Monday-Friday shift. Initially his application was unsuccessful because he did not have a "Medium Rigid" (MR) driver's licence which was an inherent requirement of the role in that shift. Mr Fletcher complained that others who did not have an MR licence were recruited to similar positions and allowed to train for the licence on the job. The Respondent said that while they did train some employees on the job when they needed more drivers with that qualification, there was no policy of providing that training to anyone who requested it. Overtime 9Mr Fletcher said that he had routinely been doing overtime on Sundays but managers started giving the overtime to others. Later, overtime available on Mondays was given to casual employees in preference to Mr Fletcher. Mr Fletcher concedes that during 2009 managers began offering him overtime more frequently but he did not want to do it because he was being blamed for things that were not his fault. Unfair discipline/lack of assistance 10On 18 November 2009 Mr Fletcher says that he was disciplined for a mistake he made whereas an unnamed colleague who made the same mistake was not disciplined. 11Mr Fletcher maintains that the Respondent did not provide him with proper assistance when he was sick at work. Comments by other employees 12Back of the line comment . Mr Fletcher says that a fellow employee by the name of "Zoran" said to him in the lunch room that because he was from Brazil, no matter what he did, he would always be "on the back of the line". He does not know the date on which this comment was made but says that it was between 2008 and 2009. If it was made before 21 July 2009 it is not within the period covered by the complaint. Mr Fletcher complained about the comment in a meeting on 10 February 2010. 13The Respondent submitted that since Mr Fletcher had not (prior to the hearing) identified the name of the employee concerned or the date on which the comment was said to have been made, it has been unable to investigate the allegation. 14Lucky I'm not black comment . Another colleague allegedly told Mr Fletcher that it would be worse if he were black. Again, if this comment was made before 21 July 2009 it is not within the period covered by the complaint. The Respondent repeated that without specific details of the incident, it could not be investigated. 15Accent comment. According to Mr Fletcher, in January 2010 the Human Resources Director, Susan Davies, commented during a conversation with him that he still had not lost his accent. Mr Fletcher interpreted this comment as being racist because it was said in a "very arrogant tone". 16Accident comment . On 20 May 2010 Mr Fletcher says that he told a colleague at work that he had bought a Holden Astra. The colleague said words to the effect of, "I hope your wife doesn't suffer an accident" and then walked away. Mr Fletcher says he found the comment very strange and when he asked him what he meant, the colleague said that Astras are expensive cars to get fixed. Mr Fletcher interpreted this comment as being a threat to his family. He said that all the employees knew how much he loves his family. The colleague's version of the conversation is that he said, "Congratulations I hope your wife doesn't have an accident because those cars are expensive to repair." 17The Respondent investigated Mr Fletcher's complaint about this comment and found that Mr Fletcher misunderstood the comment and there had been no breach of the TNT Workplace Harassment and Discrimination Policy. 18Unspecified comments . Mr Fletcher made general allegations that work colleagues had stared at him, shouted at him and used inappropriate language. Without further details, these allegations cannot be taken into account. Legal requirements 19In order to substantiate his complaint of race discrimination in employment, Mr Fletcher would have to prove that the Respondent has breached s 8(2)(a)(b) or (c) of the AD Act . Those provisions relate to the terms and conditions of employment, access to promotion, training or other benefits and being subjected to "any other detriment". Discrimination on the ground of race is defined in s 7. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr Fletcher is complaining of 'direct' discrimination. In summary, to substantiate his complaint Mr Fletcher would have to prove that: (1) he is a member of a particular race as defined in s 4; (2) the alleged conduct relates to the terms or conditions of his employment or constitutes denying access to opportunities for promotion or 'any other detriment': (3) the Respondent treated him less favourably than it treats or would have treated another employee not of his race: ( differential treatment ); and (4) at least one of the reasons for the conduct was Mr Fletcher's race even if that reason was not the dominant or a substantial reason for the treatment: ( causation ). Race 20There appears to be no dispute that Mr Fletcher's national origin is Brazilian. That is a race for the purposes of the AD Act. Conduct 21The alleged conduct, other than the making of the comments, relates to the terms and conditions of Mr Fletcher's employment, constitutes denying him access to opportunities for training, promotion etc or causing him 'any other detriment'. 22The alleged comments made by fellow workers and managers are in a different category. An employer is not vicariously liable for racially harassing comments unless the comments come within the test set down by Mathews DCJ in the case of O'Callaghan v Loder [1983] 3 NSWLR 89. That case considered the circumstances in which sexual harassment could constitute sex discrimination prior to the inclusion of sexual harassment provisions in the AD Act . As the Tribunal said in Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at [49]: Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment, thereby falling within relevant substantive provisions or prohibitions in the Act. Such conduct, in the typical case, constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment poisoned by sexual harassment or innuendo. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment which the female employee is forced to endure. It is necessary to find that male employees would not have been required to endure such a sex-based poisoned work environment. The employer's liability flows from its own omission to act, rather than as a consequence of being vicariously responsible for the actual conduct of other employees which created the poisoned work environment. 23Applying these principles, the Respondent could be liable for the comments if it failed to respond appropriately to a work environment "poisoned" by racial harassment: O'Callaghan v Loder [1983] 3 NSWLR 89; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17. Differential treatment 24The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Fletcher must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. Mr Fletcher did not identify by name any employee who had been treated more favourably than him in the same or similar circumstances. He did not, for example, identify any employee covered by the Enterprise Agreement who had been paid paternity leave or any employee who had received on the job training for a MR licence. 25In the absence of an actual person whose treatment could be validly compared with the treatment given to Mr Fletcher, 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 Department treated Mr Fletcher less favourably than a hypothetical person of another race would have been treated by determining that race or age was a reason for that treatment: Dutt v Central Coast Area Health Service [2002] NSWADT 133; Martin v McKensey (No 2) [2003] NSWADT 126. Causation 26The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way he was treated must be his race: AD Act , s 4A. When I asked Mr Fletcher why he thought he had been treated in the way that he had been treated, he said that it was because he was a whistleblower and that he was always fighting for justice. He maintained that the Respondent's employees did not help him and did not like him and that one of the reasons for that was his race. Conclusion 27Mr Fletcher's complaint lacks substance for several reasons: (1) some of the allegations are outside the period of the complaint as referred by the President of the Anti-Discrimination Board; (2) some of the allegations relate to conduct by people who were not employees of the Respondent at the relevant time; (3) many of the allegations lack particulars; (4) Mr Fletcher has not identified a relevant comparator in relation to any of the alleged conduct; (5) in relation to the conduct about leave, pay, promotion, overtime, training etc Mr Fletcher has not identified any evidence from which an inference could be drawn that a reason for that conduct was his race; (6) in relation to the conduct alleging that certain comments have been made: (a) Mr Fletcher has misinterpreted innocuous and off-hand comments as being threatening and/or racist; (b) the comments were not so repeated or pervasive that they would have affected the terms or conditions of his employment; (c) the Respondent investigated each of the complaints Mr Fletcher made when sufficient detail had been provided. Orders Leave is refused for the Applicant's complaint of race discrimination against the Respondent to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar/Associate 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. Decision last updated: 19 July 2011