Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Imielska v Northern Sydney Local Health District [2013] NSWADT 100 Hearing dates: 29 November 2012, written submissions closed 10 January 2013 Decision date: 09 May 2013 Jurisdiction: Equal Opportunity Division Before: J Conley, Judicial Member Decision: The complaint is dismissed pursuant to section 102 of the Anti-Discrimination Act 1977 (NSW) Catchwords: Application for dismissal; Race discrimination; Victimisation Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73;] NSWADT 179 Bassili v Star City Pty Ltd [2008] NSWADT 62.) Imielska v Director General of NSW Health [2012] NSWADT 25 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP5 Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP6 Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 at 231 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) Borg v Commissioner, Department of Corrective Services & Anor, [2002] NSWADT 42 Kunhi v University of New England [2008] NSW ADT 33 (16 December 2008) Khan v Commissioner, Department of Corrective Services &anor [2002] NSWADT 131 Toll Pty Ltd trading as Toll Express v Abdulrahman [2-7] NSWADTAP 70 Ekermawi v Network Ten Pty Limited [2008] NSWADT Category: Principal judgment Parties: Grazyna Imielska (Applicant) Northern Sydney Local Health District (Respondent) File Number(s): 121027 reasons for decision 1The applicant has worked at the Royal North Shore Hospital (RNSH) as a Technical Assistant in the Radiology Department since 2007. She made a complaint of discrimination on the grounds of race to the Anti-Discrimination Board (the ADB) on 17 November 2010. She alleges direct discrimination on the grounds of race in the area of employment. On 16 December 2010 the Board accepted the complaint of race discrimination for investigation in relation to the alleged comment, "Grace, are you speaking to me in Polish?" On 14 March 2011 the President of the ADB (the President) received a complaint from the applicant alleging victimisation by the respondent because she had lodged a complaint on 17 November 2010. The complaints were unable to be resolved and these two complaints were referred to this Tribunal. The President identified that the period of the complaint for the complaint of victimisation was 14 March 2010 to 14 March 2011. 2In the documents before the Tribunal the applicant refers to matters beyond the scope of the matters referred including allegations of discrimination on the grounds of age and sex. The applicant clarified that her complaint was limited to a complaint of race discrimination in relation to a comment, "Grace, are you speaking to me in Polish?" and a complaint of victimisation because she had lodged a complaint of discrimination to the ADB on 17 November 2010. She clarified that she was not pursuing any other complaints. The Procedure 3This was a matter which was listed for a hearing of a preliminary application being an application by the respondent to have the complaint dismissed pursuant to section 102 of the Anti-Discrimination Act 1977 (the Act). Both the applicant and the respondent attended the hearing and made oral submissions. Previously directions had been made for the filing of written submission in relation to the application. The respondent's oral submissions went beyond the scope of submissions contained in their written submissions. 4The applicant claimed that she was disadvantaged and taken by surprise by the respondent's submissions. She sought an adjournment to give her an opportunity to respond. The Tribunal determined that the issue could be adequately addressed by the filing of further written submissions. The Tribunal therefore gave a timetable for the filing of any further submissions. 5These are the reasons for the decision in respect of the respondent's application for dismissal pursuant to section 102 of the Anti-Discrimination Act 1977, (the Act). The Respondent's submissions 6The Respondent relies upon section 102 of the Act which provided that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1)(a)(i) or (ii) or (b). 7The respondent submits that the complaint should be dismissed pursuant to section 92(1)(a)(i) in that the complaint is frivolous or lacking in substance. It is further submitted that pursuant to s 92(1)(a)(ii) the alleged conduct if proven, would not disclose the contravention of a provision of the Act. It is submitted that both these sections would provide a basis for the dismissal of the complaint. 8It is claimed that the applicant has made numerous complaints against her employer since 2008. The respondent referred to the decision of this Tribunal in Imielska v Director General of NSW Health [2012] NSWADT 25 where the Tribunal declined to grant leave for a similar complaint to proceed. 9The respondent notes that in the current complaint the applicant alleges that staff have discriminated against her and victimised her. It was submitted that those allegations are refuted. It was submitted that the applicant has failed to disclose a contravention of a provision of the Act. In particular in relation to the complaint of discrimination, she fails to provide a factual basis for her complaints. 10It was submitted that in relation to the complaint of victimisation that the applicant fails to meet the requirements imposed by section 50. It was refuted that the respondent has caused the applicant to undergo or experience something which has caused a detriment as a result of her discrimination complaints. It was submitted that there is no factual basis for these allegations. The respondent alleges her complaints relate to reasonable directions by the respondent employer to perform task in the scope of her employment. The Applicant's submissions 11The applicant claims that the respondent has provided no supporting evidence as to why her complaint should be dismissed. She submitted that the President of the Anti-Discrimination Board (the President) did not find any reason to dismiss her complaints, therefore the Tribunal should not dismiss the complaints. 12The applicant claims that she has made a number of complaints. (It is noted that the applicant has conceded that her complaint is limited to the matters identified above). 13The applicant submits that she has provided examples of victimisation. She claims that as a result of the complaint she was victimised by an excessive workload or not doing what was asked or not doing what she should be doing. She said that the comment lead to disciplinary action and she was put on leave. The Decision The Jurisdiction to Dismiss the Complaint 14The power to dismiss the complaint is found in section 102 of the Act. The Tribunal may, at any stage in proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1)(a)(i) or (ii) or (b). 15Section 92 relevantly provides : President may decline complaint during investigation 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or ... (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. 16Sections 92(1)(a)(i) provides the complaint may be dismissed if misconceived or lacking in substance. Section 92(1)(a)(ii) provides the complaint may be dismissed if the conduct alleged if proven, would not disclose the contravention of a provision of the Act. 17The power to dismiss a complaint summarily pursuant to section 102 of the Anti-Discrimination Act, (formerly, s 111(1)), has been the subject of numerous decisions of the Tribunal. The Tribunal has adopted a cautious approach to the exercise of this power. It has been noted in a line of decisions, that the power should be exercised with exceptional caution and only if the circumstances clearly warrant such action, including, Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73;] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62.) The claim of Race Discrimination 18The complaint of race discrimination the subject of this application is the statement, "Grace, are you speaking to me in Polish?" 19In relation to that compliant the applicant provided particulars in her letter to the ADB dated 4 March 2011. She wrote that the incident occurred on 9 November 2010 at 16:30. She was passing an old CT room when she noticed Ms McHardie and Ms Shuttle talking about her. Ms McHardie saw her and approached her in the angiography Room 12. She approached Ms McHardie and said it was not appropriate to talk to others and damage her good name as an employee and it must be stopped. Ms McHardie is alleged to have responded, "What are you saying? Grace, are you talking to me in Polish?" The applicant claims that the incident was reported to Mr Emanuel immediately and to the applicant's knowledge he has not taken any action. 20The applicant provides a vast amount of material making numerous allegations against staff and management at RNSH including claims of discrimination on the grounds of age and sex. The applicant confirmed at the hearing that this was the scope of her race discrimination complaint. Aside from the statement referred to above those other complaints of race discrimination are beyond the scope of this application. 21In relation to the claim of race discrimination it is submitted by the Respondent that the conduct if proven would not amount to a contravention of the Act. 22In considering whether the respondent discriminated against the applicant on the ground of her race, the Tribunal has had guidance from previous decisions of the Courts and this Tribunal. In the Commissioner of Corrective Services v Aldridge [2000] NSWADTAP5 the Appeal Panel of the Tribunal referred to the decision of Waters v Public Transport Corporation [1991] HCA 49 (1991) 173 CLR 349 where Dawson and Toohey JJ stated, Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). 23In the case of Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP6 the Appeal Panel of the Tribunal stated: In our decision of 18 April 2000 we stated that, in relation to the complaint of discrimination on the ground of race, two issues needed to be addressed. Those issues are: Whether the Complainant was treated less favourably than a non-Aboriginal person would have been treated in circumstances that are the same or not materially different (the comparison issue); If so, whether that less favourable treatment was on ground of the race of the Complainant (the causation issue). 24In relation to the issue of differential treatment the Appeal Panel stated, ...differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. For differential treatment to have occurred in this case, the treatment of Mr Aldridge must have been objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same or similar circumstances. 25In Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 at 231 (Purvis) the High Court said that ... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 26The test for causation in discrimination was further considered by the Appeal Panel of the Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No 2). The Appeal Panel stated: The test set out by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 and applied by the Tribunal in Shaikh is essentially the same test that the High Court enunciated more recently in Purvis. That fact supports our view that s 4A is an explanatory provision which does not give the words 'on the ground of' an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision. Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 27In this matter the complaint of race discrimination is limited to the statement alleged to have been made on 9 November 2010. The Tribunal finds that the statement if proven would not amount to discrimination on the grounds of race. The statement if proven could easily have a more innocent explanation. 28The Tribunal does not accept that taken at it's highest, the applicant's claim is capable of establishing that the respondent has discriminated against her on the grounds of race. The Tribunal was unable to find that the conduct if proven would amount to a contravention of the Act. Victimisation Complaint 29Section 50 of the Act (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 30The applicant's complaint of victimisation is that she was victimised by the respondent because she had lodged a complaint filed in the ADB on 17 November 2010. The President identified that the period of the complaint for the complaint of victimisation was 14 March 2010 to 14 March 2011. 31In Borg v Commissioner, Department of Corrective Services & Anor, (Borg) [2002] NSWADT 42 the Tribunal states that the wording of section 50(1) makes it clear that the person victimised must be subjected to a detriment "on the ground that" he or she has made a complaint or an allegation of the type set out in paras (a) - (d). It was noted that in Bogie v The University of Western Sydney (1990) EOC 92 - 313 at 78, 145, the clear legislative purpose of the section is to ensure that victims of discrimination shall not be deterred from doing any of the acts set out in paras (a) - (d) by the fear that they may be further victimised. 32In Borg the Tribunal referred to the decision of Shaikh v Commissioner, NSW Fire Brigades (1996)EOC 92 (1996) EOC 92 - 808, the then Equal Opportunity Tribunal which set out what it described as the four-fold elements of victimisation at 78, 986: "Firstly, the respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraphs (a) to (d) of section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) - (d). Under sub-section 2 the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith." 33In her submissions the applicant alleges that the victimisation complaint, categorised into groups: A. Demotion Technical Assistant II to orderly with requests to perform constant excessive physical work which finally lead to health problems B. Handling a medical certificate of work restrictions C Disciplinary action Stage I and II and preparation for final stage III D Damaging my good name as an employee and human being by spreading incorrect damaging information, rumours and lies E. Limiting my rights as employee by not investigating my complaints F. Denying me rights to progress my career by obtaining training in sonography and OH&S G. Workplace bullying/mobbing 34The Tribunal notes that allegations found in paragraph F that the applicant was denied training as a sonographer, were before the Tribunal in relation to a complaint of discrimination. The Tribunal found that the respondent imposed a requirement that training for sonographers was only available to persons who were already employed as radiographers in the Radiology Department. The Tribunal then found that the respondent had provided a plausible justification for the requirement that applicant was not eligible for training as a sonographer. 35It is clear that this complaint is based upon an allegation which falls within the scope of sub-paragraph (a), in that she filed a complaint in the ADB on 17 November 2010. There is however no probative evidence before the Tribunal which establishes that if there were any detriment to the applicant, that it occurred on the grounds that the applicant filed her complaint to the ADB on 17 November 2010. The evidence before the Tribunal relates to long-standing issues of performance and performance management in the work-place. While the applicant makes allegations against the respondent, there is no evidence which causally connects the making of her complaint to the ADB on 17 November 2010 with any victimisation within the time period alleged. ********** 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: 09 May 2013