Khanna v Director General, NSW Department of Education & Communities [2012] NSWADT 92

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Khanna v Director General, NSW Department of Education & Communities [2012] NSWADT 92 Hearing dates: 21 March 2012 Decision date: 16 May 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of race discrimination to proceed is refused. Catchwords: LEAVE - whether fair and just for complaint of race discrimination in employment to proceed - complaint lacks merit - no basis on which an inference can be drawn that race was one of the reasons for the conduct Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Hamed v Director General, Department of Education [2007] NSWADT 43 Category: Principal judgment Parties: Chaman Khanna (Applicant) Director General, NSW Department of Education and Communities (Respondent) Representation: C Khanna (Applicant in person) Moray and Agnew Lawyers (Respondent) File Number(s): 121022

REasons for decision

Introduction 1The applicant, Mr Khanna, is a maths teacher from an Indian background. The issue in these proceedings is whether the Tribunal should give Mr Khanna permission for his complaint of race discrimination under the Anti-Discrimination Act 1977 (AD Act) to proceed: AD Act, s 96. The complaint, which was made against his employer, the Department of Education and Communities, was declined by the President of the Anti-Discrimination Board (ADB) as lacking in substance. 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 of the ADB 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 the complaint to proceed because it lacks merit. 3A complaint of age discrimination relating to the same facts is being determined by the Tribunal separately from the complaint of race discrimination which is the subject of these proceedings.