Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mason v Justice Health [2013] NSWADT 194 Hearing dates: 5 and 6 June 2013 Decision date: 29 August 2013 Jurisdiction: Equal Opportunity Division Before: Deputy President D Patten J Schwager, Non-Judicial member M Nasir, Non-Judicial member Decision: Application dismissed Catchwords: No evidence of unlawful discrimination Legislation Cited: Anti-Discrimination Act, 1977 Category: Principal judgment Parties: Desley Mason (Applicant) Justice Health (an agency of the State of NSW)(Respondent) Representation: Counsel E Brus (Respondent) D Mason (Applicant in person) Bartier Perry (Respondent) File Number(s): 121085 reasons for decision 1On 2 September 2011 the Applicant lodged with the Anti-Discrimination Board a complaint of race discrimination in employment against her employer identified as the NSW agency known as Justice Health. 2The Board referred the complaint to the Equal Opportunity Division of this Tribunal on 28 June 2012. The complaint as referred spans the period 2 September 2010 to 2 September 2011 and was summarised by the Board: The complainant alleges that she was discriminated against throughout her employment with Justice Health because of her race (Aboriginal). The complainant has provided a detailed summary of her employment with Justice Health. The accepted parts of her complaint refer to allegations of race discrimination on the basis of her Aboriginality. She alleges that she was not supported for training, study leave or career development, was scrutinised for sick leave and was bullied and harassed by Justice Health staff because of her Aboriginality. She refers to a number of incidents where she alleges she was harassed by non-Indigenous colleagues and did not receive an apology, however she was forced to apologise when non-Indigenous staff lodged grievances about her. The complainant alleges that on two occasions her line manager ignored her when she left for the day but acknowledged a non-Indigenous staff member. The complainant also alleges that she was humiliated and not supported in the planning and implementation of the "Healthy Kidney Week Program", a contribution towards "Closing the Gap" for Aboriginal people in custody. 3The Board summarised the respondent's response: The respondent denies any discrimination occurred. The respondent believes that the complainant's study and sick leave were dealt with according to policy. The complainant had many days of supported study leave and was counselled about sick leave as it was deemed excessive. A copy of the complainant's training course attendance was provided. The respondent states that the complainant was treated the same as any other member of staff. When the complainant lodged grievances about other staff members, appropriate action was taken, such as counselling those involved. The complainant was asked to apologise to colleagues following the grievance procedure when these staff members requested an apology. The complainant did not receive an apology following the lodgement of a grievance, as she did not request one, however the staff member was counselled. The line manager did not intentionally ignore the complainant and it may have been that she did not hear her as she has a hearing impairment in one ear. The respondent cannot ascertain how or why the complainant would feel humiliated regarding the preparation for the Healthy Kidney Week program, as the email from Ms Pauline Potts does not appear to be inflammatory. 4At the hearing at Dubbo the Applicant appeared for herself and the Respondent was represented by Ms E Brus of Counsel. 5Sections 7, 8 and 53 of the Anti-Discrimination Act are relevant to the matter: 7 What constitutes discrimination on the ground of race 1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 2)For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 8 Discrimination against applicants and employees 1)It is unlawful for an employer to discriminate against a person on the ground of race: a) in the arrangements the employer makes for the purpose of determining who should be offered employment, b) in determining who should be offered employment, or c) in the terms on which the employer offers employment (2) It is unlawful for an employer to discriminate against an employee on the ground of race: a) in the terms of conditions of employment which the employer affords the employee, b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or c) by dismissing the employee or subjecting the employee to any other detriment d)Subsections (9) and (2) do not apply to employment for the purposes of a private household 3) Subsections (1) and (2) do not apply to employment for the purposes of a private household. 53 Liability of principals and employers 1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. 2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. 3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. 4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services. 6At the relevant time the Applicant was employed as an Aboriginal Health Worker at the Wellington Health Centre in Wellington Correctional Centre. During the period the Nurse Manager of the Centre was Ms Julianne French. 7The Applicant's case largely comprised the admission of documentary material (Exhibits A B C D E and F), which was supplemented by oral evidence of the Applicant who was cross examined by Ms Brus and the evidence of Ms Elizabeth McIntyre. The Respondent in its case tendered into evidence a number of written statements and called oral evidence. Subsequently, both the Applicant and Ms Brus made written submissions. 8Although when giving directions regarding the filing and service of submissions it was made clear to the Applicant that her submissions must be confined to the evidence, she failed to so confine them and thereby failed to provide the assistance which the Tribunal was entitled to expect. In saying this we acknowledge that the Applicant is a person without legal training. 9Ms Brus in the submissions correctly, we think, identified the complaint as relating to Study Leave, Sick Leave, Grievance and Complaint Handling and Performance Appraisal. For the Applicant to succeed she must affirmatively establish that in relation to one or more of the areas of complaint she was treated differently because of her aboriginality as compared to someone who was not Aboriginal. 10In relation to study leave the Respondent had a written policy (Annexure A to Statement of Judith Neville Exhibit 1). The policy makes it clear that approval of leave is discretionary. In relation to "conference seminar or short course" of "benefit to staff member and potential benefit to organisation" the policy provides "leave may be approved or may be "on duty"". 11In cross examination the Applicant admitted that in the period 2 September 2010 to 2 September 2011 she received 30 days approved leave to attend training and development courses. However she complained particularly that she had been refused leave to attend a RANZCOG Indigenous Women's Health Conference in Cairns. According to the evidence of Nurse Manager Julianne French, interstate conferences are only supported by Justice Health if the attendee is presenting a paper. Accordingly her application for financial assistance was declined as a matter of policy. However the organisers of the conference provided the Applicant with funding that covered flights and accommodation, and she used part of her annual leave entitlement to attend. 12The Applicant also raised the admitted refusal of the Respondent to support her attendance at the launch of "Respecting the Difference: An Aboriginal Cultural Training Framework for NSW Health". 13It was not disputed that the Applicant was involved in the establishment of the program, and that she had a genuine interest in attending the opening, which however was basically a social function in Sydney. Ms French explained the reason why the Applicant's request that the Respondent support her attendance at the opening was declined: "This event was a morning tea in Sydney. It was a media and promotional event. It was not cost efficient to fly Ms Mason down to Sydney for an event that may only last for one or two hours. It was not a course or conference." 14We do not doubt that the Applicant feels aggrieved that some of her requests for study leave were declined. However it is not our role to consider whether her sense of grievance is reasonable or unreasonable. It seems clear that she did receive study leave from time to time and it is not as though all her requests were denied. Nothing in the evidence before us establishes that she was treated differently, or less generously from any other member of staff let alone that any discrimination was based on her Aboriginality. 15In relation to sick leave the Applicant's complaint is that an inappropriate warning letter was sent to her and that no other staff member other than an Aboriginal Health Worker received such a letter as the first indication of an irregularity in the taking of sick leave. 16The evidence indicates that on 31 May 2011 the Applicants Line Manager Ms Belinda Sparkes spoke to her regarding what Ms Sparkes saw as an unsatisfactory sick leave record. Ms Sparkes notes of the conversation suggest that the Applicant was somewhat uncooperative. A few days later Ms Sparkes wrote to the Applicant on the subject of sick leave a letter which included the paragraph "Should no or insufficient improvement occur or you fail to produce medical certificates, disciplinary action up to and including termination of your employment may be taken". 17The Applicant contends that in accordance with the Respondent's protocols the letter should have done no more than state "Should no improvement occur you will be issued with a second formal warning and there may be a possibility of disciplinary action." 18The evidence of Ms Sparkes deals with the matter in these terms (omitting annexed documentation) 28. Justice Health has a policy managing sick leave titled "Sick Leave Management Policy 3.140". This policy states that if a manager identifies excessive sick leave, a review of the employee's sick leave should be undertaken (paragraph 3.5 Frequent Short Term Absences). Further to this any employee who has had eight separate absences, unsupported by medical certificates, in a 12 month period is considered to have unsatisfactory sick leave. In particular, sick leave absences displaying trends must be investigated. When a trend can be identified, informal counselling with the NUM is the first step. 29. Sometime in May 2011 an audit of staff leave was done by the Finance Department - this audit is done every year. A report is sent to the Nurse Manager which identifies staff who have excessive sick leave. I keep a record of all staff sick leave that identifies any patterns in sick leave, for example if sick days are taken either side of a weekend. Following receipt of the 2011 report I determined that Ms Mason's sick leave record identified an excessive amount of sick leave and a prevalence of taking Friday or Monday off sick. Annexed and marked "H" is a copy of Ms Mason's sick leave record. 30. On 31 May 2011 I spoke informally with Desley about her excessive sick leave. Attached and marked "I" is a copy of my notes recorded on my computer after meeting with Desley. 31. Attached and marked "J" is a copy of the Leave Management - Informal Counselling form in relation to my meeting with Desley Mason on 31 May 2011. 32. On 6 June 2011 I sent an initial formal warning letter to Ms Mason in relation to her unsatisfactory leave. A copy of this letter is attached and marked "K". This is a standard initial warning letter. Before I sent his letter to Ms Mason I sent a copy of the letter to be checked by Karen Keady, the Employee Relations Manager. 33. On 16 June 2011 I gave Ms Mason a printout of all her sick leave taken as she requested. I said to her at the time "I do not need a response to the letter about counselling of sick leave". Desley said "I want to respond", and I replied 'well I will not be responding". I had consulted Karen Keady again prior to talking to Desley and she advised it was not necessary to respond to the letter. 34. Ms Mason claims she felt she was being targeted in relation to her sick leave. I deny this. Ms Mason's unsatisfactory sick leave record came to attention as a result of a routine audit. Ms Mason's management in relation to her unsatisfactory sick leave was in accordance with the Sick Leave Management Policy. There were other staff members, Aboriginal and non-Aboriginal, around the same time who were notified and counselled in relation to excessive sick leave. Ms Mason was treated in the same manner as other staff members in a similar position. 19There was no evidence that the Applicant was treated differently from other employee's still less that it was because of her Aboriginality. Indeed if there was evidence that the Applicant received the sterner form of letter while others did not we would infer that it was not because of her Aboriginality but rather due to the uncooperative attitude she displayed to Ms Sparkes on 31May 2011. 20The Applicant relies on several instances of what she regards as the Respondent's discriminatory attitude in relation to grievances. The first concerns an incident on 1 November 2010. The Applicants version of the incident is as follows: On the 1st November 2010 while in the dining room at the Wellington Clinic I was speaking to an Aboriginal patient, I had my back towards the door when Virginia Lavicka walked into the dining room and startled me. I turned around and "Virginia you scared me'. Virginia replied "I am allowed in this dining room said "you know" I said 'Yes Virginia I do know that". To my astonishment Virginia then stated and I quote "Get F..k Dessie". When I returned to my office I emailed Belinda Sparkes a Formal Complaint/Grievance. At 3.15pm I received an email from Belinda Sparkes acknowledging that she had received my grievance. Julianne French was also C.C into this email. I didn't speak to Julianne French on the 1st November 2010 nor any other staff member. On the 2nd November 2010 at approximately 11:50am, I was approached by Julianne French to go to her office to discuss what had happened the day before. Julianne was aware that I was not comfortable in going into her office for the discussion, so we decided to go into the dining room. Julianne French suggested a facilitated meeting with Ms Lavicka which I refused on the grounds that I was still feeing humiliated and felt it was too soon to meet with her. While I may not have mentioned to Julianne French my feelings, one would assume that Julianne French being the Nurse Manager should have given Virginia Lavicka the direction to apology. Especially when Ms Lavicka admitted to the nurse Manager her (sic) inappropriateness of her behaviour and agreed not to use this kind of language ever again in front of me or any other staff members. (Please refer to Complaint No 4 which is five (5) months later when Ms Lavicka once again used unacceptable language. When the meeting was finished I went straight back to my office an (sic) emailed to Belinda Sparkes and copied in Julianne French thanking both ladies for addressing the matter promptly. This would have been about ten (10) minutes after I spoke with Julianne in the dining room. I don't appreciate Justice Health response stating that I wanted to change the "goal posts". The purpose of notifying Management of this disgusting behaviour was to try and stop it happening to another staff member or the patients. Justice Health should have great concern about one of their Nurse/Educator behaving in this disgusting manner. 21There seems to be little if any dispute as to the accuracy of this version. The Respondent's position is encapsulated by these paragraphs: Ms Mason made a written complaint against Ms Virgina Lavicka on 1st November 2010 via email to the Nursing Unit Manager (NUM) Ms Belinda Sparkes alleging that Ms Lavicka swore at her in front of a patient. She requested that the NUM deal with the matter. The issue was escalated to Ms Julianne French the Western Cluster Nurse Manager to address as Ms Sparkes was going on annual leave and did not want to leave the issue for the Acting NUM to address. Ms French met with Ms Mason and asked her what she would like as an outcome. Ms French suggested a facilitated meeting between both parties, but Ms Mason advised that she did not want to meet with Ms Lavicka, but she did want Ms Lavicka spoken to in regards to the inappropriate comment. Ms French advised that she would meet Ms Lavicka and discuss her behaviour and Ms Mason agreed to this course of action. Ms French met with Ms Lavicka, who stated that her comments were meant in jest and believes she delivered the comment in a joking manner. Ms French counselled her that Ms Mason obviously did not consider it a joke and that Ms Lavicka needed to be mindful of her language in general and to use professional and appropriate language only in the workplace. Ms Lavicka agreed not to use this sort of language ever again in front of Ms Mason or any other staff member. Ms French followed up the meeting with Ms Lavicka by providing feedback to Ms Mason. Ms French advised Ms Mason that Ms Lavicka was now aware of the inappropriateness of her behaviour and had promised not to speak like that to her again. Ms Mason advised Ms French that she was happy with this result. Ms French then considered this grievance resolved and completed. 22Although according to the evidence Ms Lavicka has never apologised to the Applicant for what she said to her on 1 November 2010 the incident of itself would not seem to us to fall within conduct prohibited by the Anti-Discrimination Act. Whether it does when regarded with other action taken by the Respondent in respect of grievances remains to be considered. 23The next incident to be considered occurred according to the Respondent, on 14 December 2011. Its version of the facts which we take from Exhibit D were as follows: On 14th December 2011 Ms Lisa Swainston made a complaint about Ms Mason alleging that Ms Mason punched a filing cabinet next to her. Ms Swainston was showing a new staff member around the health centre and states that both of them were startled by the incident. She advised the NUM, Ms Sparkes, that she found the action to be inappropriate, intimidating and offensive. Ms Sparkes asked Ms Swainston what she would like as an outcome and Ms Swainston asked for an apology for the both of them from Ms Mason. Ms Sparkes met with Ms Mason the following day and asked her about the incident. Ms Mason admitted to punching the cabinet. Ms Sparkes advised Ms Mason that the staff members had requested an apology. Ms Sparkes offered to attend any meeting with the two staff members as support for Ms Mason. This offer was accepted and Ms Sparkes advised Ms Swainston and Ms Mason verbally apologised to the two staff members. 24The Applicant takes issue with the date of the incident which was she says 14 December 2010 and she also asserts that she struck the cabinet with an open back hand. 25There was a further incident on 11 August 2011 described by the Respondent in Exhibit D as follows: Ms Mason made a complaint about the Acting NUM Ms Pauline Potts on 11th August 2011. Ms Mason alleged that Ms Potts raised her voice when talking to her in the tea room. Ms French met with Ms Mason to ascertain what she would like as an outcome from the complaint. Ms Mason advised that she would like an apology from Ms Potts. Ms French then interviewed Ms Potts and advised her of the complaint. Ms Potts admitted that she did raise her voice in response to Ms Mason threatening her with "writing a report" on the issue of the urine sticks. Ms French advised Ms Potts that an apology was requested by Ms Mason. Ms Sparkes's feedback to Ms Mason that Ms Potts was considering her request for an apology. Ms Potts did in fact apologise to Ms Mason the following week and acknowledged that she should have spoken with Ms Mason in a more private setting. 26Despite the last sentence of what appears above, the Applicant claims that Ms Potts has in fact never apologised. This is contrary to the evidence of Ms Potts herself who said that she apologised to the Applicant for raising her voice to her the next day and, the evidence of Ms French who testified that she overheard the apology. 27The above incidents considered either singly or together do not to our minds fall within the conduct rendered illegal by Sections 7 and 8 of the Act. On the face of it the Respondent reacted appropriately to the complaints made to it without regard to the race of either the person complaining or the person complained of. Incidentally Ms Swainston, now Ms Hodges, gave oral evidence as to her own aboriginality which was not challenged by the Applicant. 28The Applicant claimed that on other occasions there were workplace disagreements during which she was humiliated by other staff. None of these seem to fall within the conduct prohibited by the Act. But in any event there is no evidence that they had anything to do with the Applicant's Aboriginality. Into this category falls the Applicant's Complaint that she was ignored on two occasions when as she left the office she called out good night to Ms French but received no response. Ms French denies that she ever deliberately ignored the Applicant or anyone else for that matter but explained that she has a hearing deficiency. 29In the result although we accept that the Applicant has a number of grievances which she believed to be genuine we do not accept that any of them constituted conduct prohibited by the sections of the Anti Discrimination Act quoted above. Moreover we do not accept that there was any evidence that the grievance the Applicant held. Genuine or otherwise, were related to her aboriginality. 30It follows that the Applicant has failed to prove her case and we order that the application be dismissed. ********** 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: 29 August 2013