Khader v Rail Corporation NSW [2012] NSWADT 32

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Khader v Rail Corporation NSW [2012] NSWADT 32 Hearing dates: 15 to 18 August 2011,6 September 2011 Decision date: 02 March 2012 Jurisdiction: Equal Opportunity Division Before: Judicial Member C Huntsman Non-Judicial Member J Schwager Non-Judicial Member M Nasir Decision: The application is dismissed Catchwords: Race discrimination; victimisation; inferences; whether referral for heath assessment was victimisation Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5; Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20; Dutt v Central Coast Area Health Service [2002] NSWADT 133; Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Category: Principal judgment Parties: Mr Mahmoud Khader, Applicant RailCorp, Respondent Representation: Mr Ginters, Respondent The applicant in person Henry Davis York for the respondent File Number(s): 091086

REASONS

Background 1On 14 July 2008 the applicant, Mr Khader, made a complaint to the Anti-Discrimination Board of race discrimination in his employment by RailCorp, the respondent. Mr Khader had been employed by RailCorp since 1979, and as a train guard since 1983. On 25 August 2008 further information was received by the Anti-Discrimination Board (the Board) from the applicant. The complaint related to alleged harassing behaviour towards the applicant from various work colleagues, particularly train drivers, over a number of years. The Board determined that only the parts of the applicant's complaint occurring on or after 14 July 2007, were accepted for investigation, namely an incident on 15 July 2007 and an incident on 5 November 2007. Following the second incident on 5 November 2007, the applicant was referred to HealthQuest for a health assessment by the respondent. The purpose of the assessment, according to the respondent, was to establish the applicant's physical and psychological health and fitness to continue his rail safety duties. 2During the course of the Board's investigation, the Board formed the view that Mr Khader was also making allegations of victimisation. The Board determined that the applicant was making a claim that, as a result of bringing a complaint of race discrimination to the respondent's attention, he had been victimised in that he had been referred to HealthQuest (for medical assessment) and declared unfit despite a recommendation to the contrary. The respondent denied any discrimination and victimisation. On 24 June 2009 the President of the Anti-Discrimination Board declined the complaint of race discrimination in relation to the 5 November 2007 incident. The Board subsequently referred the complaints of racial discrimination in employment in relation to the incident of 15 July 2007 and victimisation, to the tribunal for determination. 3Prior to the hearing of this matter a number of case conferences were held and directions made for the filing of material by the parties. At no time was any determination made that the complaint referred to the tribunal by the Board be varied/application amended as to the period of the complaint, or in relation to the President's decision to decline the complaint of race discrimination in relation to the 5 November 2007 incident. At the commencement of the hearing some time was spent ensuring the parties' understanding of the application before the tribunal, being the complaints referred by the Board. The matters for the tribunal to determine were the complaint of race discrimination in relation to the incident of 15 July 2007, and the victimisation complaint which was based on the referral to HealthQuest. Other material filed by the parties went to some background information to assist the tribunal to understand the evidence. As discussed further below some time was spent in the hearing on medical evidence, the relevance of that evidence to the tribunal's determinations will be discussed below. The evidence 4At the hearing, oral evidence was given by the applicant, in addition to written material, including medical reports, filed by the applicant with the Board and the tribunal; and the witnesses Dr Kunchapudi and Dr Napper gave oral testimony to the tribunal by telephone. The respondent submitted considerable written material including medical reports and written affidavits and oral evidence from the following witnesses: Mr Atchinson, train guard; Ms Stuardo, human resources manager with the respondent; Mr Morton, solicitor with the respondent; Dr Samuell, and the tribunal heard oral evidence from the following witnesses who were summonsed to attend: Mr O'Neill, Psychologist, Mr Flaherty, traindriver; Ms Harpur, duty manager. The evidence will be further discussed below.