Imielska v Director-General, NSW Health [2012] NSWADT 25

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Imielska v Director-General, NSW Health [2012] NSWADT 25 Hearing dates: 31 January 2012 Decision date: 15 February 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint to proceed. Catchwords: LEAVE - whether fair and just for complaint of age and race discrimination to proceed - meaning of substantially higher proportion element of indirect discrimination Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 O'Callaghan v Loder [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Perera v Civil Service Commission [1982] IRLR 147 Texts Cited: Rees, Lindsay and Rice, Australian Anti-Discrimination Law, The Federation Press, 2008. Category: Interlocutory applications Parties: Grazyna Imielska (Applicant) Director-General, NSW Health (Respondent) Representation: G Imielska (Applicant in person) Gild Insurance Litigation (Respondent) File Number(s): 111128

REasons for decision

Introduction 1Ms Imielska is a 54 years old woman who migrated to Australia from Poland in 1996. She has been working at Royal North Shore Hospital as a Technical Assistant in the Radiology Department since December 2007. She has made numerous complaints against her employer since 2008. She made further complaints about how those complaints were investigated and resolved. In September 2010, and again in May 2011, she complained to the President of the Anti-Discrimination Board of race and age discrimination. The President only accepted her complaints about incidents which had occurred after September 2009. 2The complaints were about comments made by other employees and managers, the way in which her complaints had been investigated and the fact that she was not eligible for appointment to a position of trainee sonographer in 2010. The reason she was ineligible was that the respondent had a policy of only appointing employees who were already employed as radiographers in the Department. A sonographer uses ultra sound to produce images of the body, whereas a radiographer operates X-ray and other imaging equipment. 3The President of the Anti-Discrimination Board declined Ms Imielska's complaint as lacking in substance. She applied to the Tribunal for permission for her complaint to go ahead: Anti-Discrimination Act 1977 ( AD Act ), s 96. The 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 lacks substance. 4In order to decide whether the complaint should proceed I need to examine both the factual and legal basis for the complaint and come to a view as to whether it is fair and just for it to proceed.