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. Background 4Mr Khanna has been a maths teacher for 40 years. He says that until 2007 he was treated very well. His complaint is about events that occurred after he was transferred to Birrong High School in 2010. 5Mr Khanna alleges that the Principal of Birrong High School, Ms Wilkins, asked Mr Khanna's supervisor, Ms Carson, to observe some of his lessons. According to Ms Wilkins, the reason for this request was that she was concerned that Mr Khanna's teaching performance was below the required standard. In a letter to Mr Khanna dated 6 September 2011 she wrote that: I reject your claims of discrimination and do not accede to your request that I withdraw my requirement for your supervisor Ms Carson to observe some of your lessons as I am concerned that your teaching performance is below the required standards. 6Ms Wilkins gave evidence that classroom observation was part of the Teacher Assessment Review Schedule (TARS) provided for in Clause 9 of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009. That award provides for the annual review of a teacher's performance supported by "observations of educational programs". In particular the Principal is required to make a judgement as to whether the teacher "communicates effectively with their students" and "creates and maintains a safe and challenging learning environment through the use of classroom management skills." There was no dispute that Mr Khanna is not and never has been placed on a "Teacher Improvement Program." 7In order to determine the level of satisfactory performance of all teachers including Mr Khanna, Ms Wilkins says she required him to agree to the in-class observations. Ms Carson provided a lesson observation schedule to Mr Khanna on 30 August 2010 however Mr Khanna refused to participate. On 6 September 2011 Ms Wilkins provided a revised schedule. The observations were for one lesson per week. Again, Mr Khanna refused to participate. Legal principles 8In order to substantiate his complaint of race discrimination in employment, Mr Khanna would have to prove that his employer has breached s 8(2)(a) of the AD Act. That provision makes discrimination on the ground of race unlawful in relation to the terms and conditions of employment. 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 Khanna's is complaining of 'direct' discrimination. 9Applying these provisions, in order to substantiate his complaint Mr Khanna 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) Ms Wilkins treated him less favourably than she treats or would have treated another employee not of his race: (differential treatment); and (4) at least one of the reasons for that conduct was Mr Khanna's race even if that reason was not the dominant or a substantial reason for the treatment: (causation). Race and conduct 10There appears to be no dispute that Mr Khanna's national origin is Indian. That is a race for the purposes of the AD Act. 11The alleged conduct relates to the terms and conditions of Mr Khanna's employment. He is required to comply with a direction that his performance as a teacher be assessed by way of observation by a more senior teacher. Differential treatment 12The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Khanna must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. 13Mr Khanna asserted that he is 100% sure that no other teachers at the school were required to have their classes observed or videoed in 2010 or 2011. He said that he thought there were approximately 70 teachers at the school. When it was put to him that he was absent for the last two months of 2011, during which time such observations may have occurred, Mr Khanna said that because he talks to his colleagues they would have told him if they had been observed in the classroom. 14Ms Wilkins, who has been the Principal for eight years, gave evidence that Ms Carson had videoed some teachers from the Maths Department. 15While other teachers may have been observed or videoed once, Mr Khanna was given a schedule of class observation times averaging one per week over a five-week period. Ms Wilkins did not say that that was a standard practice for all teachers. It follows that Mr Khanna may be able to establish that he was treated less favourably than other teachers. There was no evidence as to the race of the other teachers, nor of their circumstances. Causation 16The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way Mr Khanna was treated must be his race: AD Act, s 4A. Mr Khanna says that he cannot see any reason other than his race (or age) that could have been the reason for the treatment. 17It is insufficient to assert that race is a reason for adverse treatment. It is rare for there to be direct evidence that race was a factor. There was none in this case. Alternatively, an applicant may seek to prove that race was a factor, by way of inference from other facts: Hamed v Director General, Department of Education [2007] NSWADT 43 at [26]. Such an inference may be drawn, for example, when there is no other credible explanation for the treatment. That is not the situation in this case. In her letter of 6 September 2011, Ms Wilkins expressed concern that Mr Khanna's teaching performance was below the required standard. When the matter reached the Anti-Discrimination Board the Department provided a copy of two complaints both from ESL teachers, including Ms Hazim, who had close contact with Mr Khanna. 18Mr Khanna says he was never advised of any complaints against him or any other basis on which Ms Wilkins held that view. While that may be the case, there is evidence of concern both in Ms Wilkins' letter and in the complaints by other teachers. If this matter were to proceed to hearing, it is highly unlikely that the Tribunal would draw an inference that Mr Khanna's race was a reason for Ms Wilkins requiring him to be observed in class for one lesson a week. In those circumstances the complaint lacks merit and leave for it to proceed is refused. Order Leave for the applicant's complaint of race discrimination to proceed is refused. ********** 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: 16 May 2012