Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AEQ v Department of Education and Communities [2011] NSWADT 194 Hearing dates: 2 August 2011 Decision date: 12 August 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint to proceed. Catchwords: LEAVE - complaint of race discrimination in employment declined lacking in substance - leave required for complaint to proceed - test of what is fair and just in the circumstances - complaint misconceived and lacking in substance Legislation Cited: Anti-Discrimination Act 1977 Public Sector Employment and Management Act 2002 Cases Cited: Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones & Anor v Ekermawi [2009] NSWCA 388 Philip v State of New South Wales [2011] FMCA 308 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Category: Interlocutory applications Parties: AEQ (Applicant) Department of Education and Communities (Respondent) Representation: Counsel P Ginters (Respondent) AEQ (Applicant - In person) Crown Solicitor's Office (Respondent) File Number(s): 111045 REasons for decision Introduction 1EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): On 27 August 2010, AEQ complained to the President of the Anti-Discrimination Board that she had been discriminated against by her former employer, the Department of Education and Communities, on the ground of her race. AEQ is from India. In March 2010 she was offered employment on a temporary basis for up to 12 months as a Team Leader in the Funds Management Team, Shared Services Centre. Her employment was terminated on 1 July 2011 allegedly for poor performance. 2The President of the Board declined the race discrimination complaint as lacking in substance. AEQ 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(1). 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 AEQ to satisfy the Tribunal that leave should be granted. IRC proceedings 3A month before lodging a complaint with the Board, AEQ lodged an application with the Industrial Relations Commission (IRC) seeking redress for unfair dismissal. That matter has been settled in principle. The proceedings have been concluded subject to the terms of the agreement being met. AEQ says that the terms of that agreement have not been met. 4Section 96(2) of the AD Act provides that: An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal. 5Even if leave were given for the complaint to proceed under s 96(1), it is arguable that a further grant of leave would be necessary under s 96(2). As I have decided to refuse leave under s 96(1), there is no need to decide whether leave is also necessary under s 96(2). Complaint to Anti-Discrimination Board 6AEQ's initial complaint to the Board was in virtually identical terms to her application to the IRC. AEQ set out various incidents which had occurred during the period from March 2010 to 1 July 2010 when she was dismissed. She claimed that her dismissal was "harsh, unjust, and unfair" and that her termination was unlawful. AEQ alleges that three people in particular discriminated against her, namely: her manager, Ms Robinson, the Director, Mr Anderson, and the Director of the Employee Performance and Conduct Unit (EPAC), Ms Thorpe. 7As AEQ had not identified any ground of discrimination in her initial complaint, the President of the Board requested further information. On 27 September 2010, AEQ wrote saying that her "ethnic background is of Indian origin". She added that, "Regularly my supervisor and other team leader (sic) who was also placed in my position (dual occupancy) have commented on the accent, style and type of communication, their difficulty in understanding spoken English from ethnic background. My supervisor has constantly commented over the phone that she finds it very difficult to understand conversation (sic) from Indian people." 8AEQ gave the following examples of discriminatory conduct: (a)placing another contract person in my position without authority to do so; (b)ignoring merit-based selection of an employee when the employee comes from ethnic background; (c)constantly harassing a person of ethnic background by isolating a person of ethnic background; (d)not providing (sic) with support when required for work purposes; (e)withholding information from the person of ethnic background which is otherwise required to provide that person to do the job properly; (f)not providing with equal opportunity to participate in activities - e.g. for team leaders meeting, a team leader of ethnic background is not invited; (g)when the work-related queries are managed by a team leader of ethnic background, escalating those queries to the manager of European background or bypassing those queries through other members who are European background. 9The Department responded saying that the various teams in Shared Services consist of people from many backgrounds. AEQ's supervisor denied making any statement about AEQ's accent. Supervisors and managers had issued guidelines about clear communication and informed all team members as a group that they needed to follow those guidelines. No individual or group was singled out. 10In relation to the allegation that there was a delay in AEQ commencing her position, e-mails dated 24 March 2010 from Ms Robinson explain the reason for a start date of 7 April. At page 21 of the President's Report, Ms Robinson explains that she will be on leave prior to that date and they have a temporary staff member doing the job in the meantime. 11In relation to the dismissal, the Department said that it was entitled to "dispense with the services of a departmental temporary employee at any time": Public Sector Employment and Management Act 2002 , s 30. That provision does not excuse the Department from any breach of the AD Act but it does allow the Department to dismiss an employee without complying with any particular process or procedure. 12The President of the Board wrote to AEQ again on 16 December 2010 asking that she respond to the Department's comments. She provided further information in a letter dated 12 January 2011 and added that she would provide further examples during the process of conciliation. She said that these examples would "demonstrate mishandling of employee concerns, breach of privacy, harassment of complainants by the managers, onlooker type behaviour by the directors harbouring misbehaviour and misconduct in the workplace and misconduct of many employees wasting government funded taxpayer's money provided to the Department." 13According to the respondent, AEQ was terminated because of her poor work performance. On 29 June 2010 she was given a letter saying that there were outstanding matters of concern including "the failure to communicate with the nominated supervisor in relation to work issues, failure to attend meetings as directed by her supervisor, wasting resources by attempting to redo work that had been finalised by other employees, misuse of e-mail facilities, unexplained absenteeism and failure to work cooperatively with team members." 14The Department says that they tried to meet with AEQ to discuss these issues on more than one occasion but she refused to attend the proposed meeting. Consequently, on 29 June 2010, Mr Anderson approached AEQ giving her specific directions. The directions reflected the Department's concerns and would, if complied with, have resolved the situation. According to the Department, AEQ failed to comply with the directions and her employment was terminated on 1 July 2010. 15During the course of the hearing, AEQ said that the main areas of conduct about which she was complaining were: being dismissed; not being able to commence duties straight away; being denied training and being deprived of access to information including being prevented from attending team meetings. She also said that she had no support from the EPAC Unit following the receipt of the letter dated 29 June 2010 requiring her to comply with various directives. 16In relation to training, the Department said that AEQ was employed at a grade 7/8 level on a salary of a minimum of $75,000 a year. Given that salary it can be expected that she was capable of carrying out the inherent requirements of the position without receiving training in relation to basic software. Declination of complaint 17The President of the Board declined the complaint on 21 March 2011 on the following grounds: (1) The complainant has made several allegations of her supervisors' conduct and poor management. Although these are very serious allegations, they are not covered by the Anti-Discrimination Act 1977 . (2) The complainant's initial complaint correspondence made no mention of the complainant's race or that the complaint relates to the issue of race. The subsequent correspondence states that there was racial discrimination, and questions whether her race was an issue, but does not specify racially discriminatory events. (3) The parties have provided some information about the disputes between the complainant and management. The complainant has stated that some of the less favourable treatment occurred to a person of Indian background, but has not provided information to show that any specific detriment occurred to her because she has an Indian background. Rather, it appears that unfavourable treatment to the complainant occurred in the context of numerous workplace disputes. There is no information suggesting that a person who was not of Indian background, in similar circumstances to those in this case, would have been treated any differently. Whilst the complainant has made general allegations, for example, 'racial views,' there is no detail or information to show that any specific events occurred because of the complainant's race. (4) The complainant was twice invited to comment on the respondent's response. Despite taking several opportunities to provide information, the complainant has not provided specific allegations or substantiated the allegations. (5) On the basis of the information provided to the Board by the complainant and the respondent, I consider that the allegation of race discrimination is lacking in substance for the above reasons. Legislative provisions 18If permission were given for the matter to proceed to a hearing, AEQ would have to bring evidence to substantiate her complaint "on the balance of probabilities." AEQ is alleging that her employer has breached s 8(2) of the AD Act which 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. 19What 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. 20Section 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. During the course of the hearing AEQ clarified that her complaint was one of "direct" discrimination. 21Given these provisions, in order to substantiate the complaint AEQ would have to prove that: (1) she is a member of particular race as defined in s 4; (2) the alleged conduct relates to the terms or conditions of her employment or constitutes dismissing her from employment: AD Act , s 8(2)(a) and (c); (3) the Department 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: (differential treatment); and (4) the alleged conduct was on the ground of AEQ's race: (causation). Consideration Race 22AEQ nominated her race as "Indian." Race includes "colour, nationality, descent and ethnic, ethno-religious or national origin": AD Act , s 4. There was no dispute that Indian comes within that definition. Terms and conditions of employment or dismissal 23Some of the conduct about which AEQ complains relates to the terms and conditions of her employment. Other conduct challenged the Department's compliance with various laws, policies and procedures. Examples include: (1) an allegation that as division head, the Director-General of the Department was the only one with authority to dismiss her; (2) an assertion that she had not been given an opportunity to add written comments to any adverse notation recorded on her personnel file as provided for in the personnel Handbook version 11.2 at 5-3.4.7; (3) that the Department treated her for some purposes as a permanent employee when she was a temporary employee; and (4) that the Department used the provision allowing for the termination of temporary employees "at any time" for their own purposes: Public Sector Employment and Management Act 2002 , s 30. 24AEQ felt vindicated by the fact that the organisational chart for the Department showed that as at 24 June 2011, the position of Director, Human Resources, Shared Services had been created. She said that this was a positive development because it was evidence of the fact that her complaints were justified. 25These aspects of AEQ's complaints were misconceived because they challenge the lawfulness of certain conduct on grounds other than being a breach of the AD Act . Nevertheless some of AEQ's assertions do relate to the terms and conditions of her employment and to the fact that she was dismissed. Differential treatment 26The first component of the test for direct discrimination is the "differential treatment" test. The treatment afforded to AEQ must be compared with the treatment that would have been afforded to a person not of her race in the same or similar circumstances. 27AEQ compared herself with the three people against whom she complained and other team leaders who were all of "European/non-ethnic background." These people are not valid comparators because they were not in the same or similar circumstances to AEQ. They were her supervisors. AEQ also compared her treatment with the treatment afforded to a contract worker. Again, the circumstances relating to that worker were materially different from the circumstances relating to AEQ. 28When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the Department treated AEQ less favourably than a hypothetical person of a different race by determining that race was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. Causation 29To substantiate her complaint, at least one of the reasons for AEQ being treated in the way she was treated must be her race. There is no need for her to prove that the Department intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge makes it 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. 30For AEQ to prove "causation" she would have to rely on either direct evidence of causation or seek to draw inferences from primary facts. The only 'direct' evidence is AEQ's belated reference to comments about her accent and clear communication when prompted by the Board to demonstrate a link between the Department's conduct and her race. It is highly unlikely that AEQ would be able to prove that her accent was one of the reasons for the way in which she was treated. The Department denies that any comments were directed personally to AEQ. Rather, the comments about effective communication were made to the entire group. In addition, this point was only faintly argued by AEQ after being given an opportunity by the Board to identify a ground of discrimination. 31Consequently, AEQ would have to rely on the Tribunal drawing an inference that race was one of the reasons for the conduct, based on primary findings of fact. In Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [85], the Tribunal set out the relevant principles applicable to the drawing of inferences: 85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence. 32On appeal, these principles were said to be unexceptionable: Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 at [8]. See also Philip v State of New South Wales [2011] FMCA 308 at [113] to [119]. 33Having read the President's report and the submissions filed by the parties and taking into account the oral submissions given at the hearing, it is highly unlikely that AEQ would be able to prove that race was one of the reasons for the Department's conduct. The Department has put forward a more probable and innocent explanation, namely AEQ's poor performance. The details of that poor performance are documented, as is AEQ's failure to comply with the directions she was given. Order Leave is refused for the applicant's complaint to proceed. ********** 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: 12 August 2011