Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Loke v Director General, Department of Education and Communities [2013] NSWADT 212 Hearing dates: 2 July 2013 Decision date: 27 September 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaints to proceed. Catchwords: ANTI-DISCRIMINATION - leave - complaints of race discrimination and victimisation dismissed as lacking in substance - whether fair and just for complaints to proceed Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Hamed v Director General, Department of Education [2007] NSWADT 43 Jones v Ekermawi [2009] NSWCA 388 Category: Interlocutory applications Parties: Ganesh Loke (Applicant) Director General, Department of Education and Communities (Respondent) Representation: Applicant (In person) Makinson & d'Apice (Respondent) File Number(s): 131030 reasons for decision Introduction 1Mr Loke, who is of Indian descent, has been a Technology and Applied Studies (TAS) teacher for seven years. He complained that his employer, the Director General of the Department of Education and Communities, victimised him and discriminated against him on the ground of his race in breach of the Anti-Discrimination Act 1977 (AD Act). The President of the Anti-Discrimination Board declined his complaints as misconceived and lacking in substance: AD Act, s 96. The Tribunal may give Mr Loke permission for his complaints to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388. I have decided not to give Mr Loke permission for his complaints to go ahead because it is highly unlikely that he would be able to substantiate those complaints. Complaint of victimisation 2Mr Loke started working at Birrong Boys High School in July 2010. Four months later a new head teacher, Mr Albanese, was appointed. Mr Loke said that Mr Albanese was inexperienced and did not know how to respond when students were sent to him for misbehaviour. Mr Loke complained to the principal, Ms Dassaklis, but says that she ignored him. Mr Loke then complained in writing to the School Education Director and the Regional Director. 3On 16 August 2012 Mr Loke lodged a complaint with the Anti-Discrimination Board naming Ms Dassaklis and others. Two weeks later, in an email to Ms Dassaklis, he mentioned an investigation by the Anti-Discrimination Board and enclosed a "Workcover NSW Medical Certificate" completed by Dr Salama stating that he had had "anxiety and depression" from 20 August 2012 but that he was fit for his pre-injury duties from 3 September 2012. Under the heading "management plan", Dr Salama wrote: To see psychiatrist and psychologist (Avoid stressful meetings as case of anti-discrimination is under investigation) 4On 13 September 2012 Ms Dassaklis asked Mr Loke to attend a meeting, told him that she wanted to observe his classes and put him on an "informal support program". The respondent explained that all teachers are subject to the Teacher Assessment and Review Schedule (TARS) which includes an annual assessment of their performance. The TARS policy expressly states that observations and monitoring of lessons will occur as part of the Principal's responsibilities. The TARS policy also states that prior to placing a teacher on a Teacher Improvement Program, the Principal must ensure that informal support has been provided to the teacher. 5Mr Loke lodged a complaint of victimisation with the Anti-Discrimination Board the next day, 14 September 2012. According to Mr Loke, Ms Dassaklis put him on an informal support program because he had complained about her to the School Education Director and the Regional Director. He also says she was motivated by the fact that he had complained to the Anti-Discrimination Board on 16 August 2012. What constitutes victimisation? 6It is unlawful to victimise a person because that person has complained about discriminatory treatment: AD Act, s 50. Section 50 provides that: 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. 7To substantiate his complaint Mr Loke would have to prove that one of the reasons Ms Dassaklis placed him on an informal support program was that he had alleged that she had done something which amounts to a contravention of the AD Act: s 50(1)(c). Link between complaining and being put on informal support program 8Mr Loke submitted that there was a link between his complaints to the Directors and/or his complaint to the Anti-Discrimination Board and the decision on 13 September 2012, to place him on an informal support program. In the letter of complaint to the Anti-Discrimination Board on 14 September 2012, Mr Loke wrote that: Hence, I believe, it is a victimisation, and I am being more harassed by her because I made complaint against her discrimination to the authorities. 9The complaints that Mr Loke says he made to the School Education Director and the Regional Director were not in evidence. Even if Mr Loke could prove that he complained that Ms Dassaklis had discriminated against him, the respondent says that those complaints were made between six and nine months before the meeting with her in September 2012. There is no other evidence as to the date those complaints were made or what they contain. As the evidence stands, Mr Loke would have great difficulty proving that there was any link between Ms Dassaklis' decision to place him on an informal support program and any complaint to the Director and the Regional Director. 10It would also be very difficult for Mr Loke to establish any link between his complaint to the Anti-Discrimination Board on 16 August 2012 and the decision to put him on an informal support program four weeks later. There had been discussions between Ms Dassaklis and Mr Loke about performance and support since May 2011. On 4 November 2011, for example, the Principal sent an email to Mr Loke identifying areas of concern and advising him that when he resumed employment there would be a discussion relating to his performance and the provision of informal support. Mr Loke was first invited to attend a meeting with the Principal about that issue on 14 August 2012. Mr Loke responded by saying that he was unable to attend and lodged a complaint with the Anti-Discrimination Board on 16 August 2012. 11Because the evidence does not provide any basis for inferring that there is a link between the decision to place him on an informal support program and either Mr Loke's complaint to the Director and Regional Director or his complaint to the Anti-Discrimination Board, it is not fair or just for this complaint to proceed. Complaints of race discrimination 12Mr Loke also makes two complaints of race discrimination. 13The first complaint is that despite giving Ms Dassaklis a Workcover certificate saying that he needed to avoid any stressful meetings until his earlier race discrimination complaint had been resolved, the Principal asked him to attend a meeting on 13 September 2012 to tell him that he would be placed on an "informal support program." 14The second complaint of race discrimination is that the Principal treated a casual teacher, Mr Solis, more favourably than she treated him. He says that he was told that there were not enough school funds to purchase items such as chairs, printers and scanners for the computer classrooms. He also says that he was told that there were insufficient funds to retain all staff, including a colleague of the same racial background as himself. But the school hired a casual Information Technology teacher, Mr Solis, to do some casual non-teaching work one day per week and purchased items that he requested. 15Mr Loke says that it would normally have been his role to ask for equipment such as chairs or print cartridges to be ordered but as soon as Mr Solis came, the items were purchased. 16According to the respondent, the school engages technical support once a fortnight to maintain the school's technology system. Extra technical support was requested on 16 October 2012 and Mr Solis was asked to provide that support. 17All requests from staff for the purchase of equipment need to be made through the Head Teacher of the TAS Faculty. Mr Solis had lodged a Purchase Request Form in accordance with departmental procedure and the Head Teacher approved that request. Any request by Mr Loke is subject to the same procedure. Despite this protocol, Mr Loke believes that the Principal is the real decision maker. The respondent maintains that it is the Head Teacher who makes those decisions. What constitutes race discrimination? 18In order to substantiate his complaints of race discrimination, Mr Loke 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 Loke is complaining of 'direct' discrimination. 19Applying these provisions Mr Loke 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 him access to opportunities for promotion or 'any other detriment'; (3) Ms Dassaklis 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 Loke's race even if that reason was not the dominant or a substantial reason for the treatment (causation). 20There appears to be no dispute that Mr Loke's national origin is Indian. That is a race for the purposes of the AD Act. The alleged conduct relates to the terms and conditions of his employment: s 8(2)(a). 21The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Loke must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way Mr Loke was treated must be his race: AD Act, s 4A. First complaint of race discrimination 22In relation to the first complaint of race discrimination, there is no actual comparator. A tribunal hearing this complaint would have to determine whether, in the same or similar circumstances, Ms Dassaklis would have put a non-Indian teacher on an informal support program. When the comparator is a hypothetical person it is difficult to apply the differential treatment test before examining the issue of causation. 23Mr Loke would have 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. Mr Loke supports his complaint by providing evidence that his performance was satisfactory. He says the only explanation for Ms Dassaklis' decision is his race. 24In a letter to the Anti-Discrimination Board on 14 November 2012, Mr Loke attached the 2012 Annual Review of his performance. Ms Dassaklis "certified" in that report that Mr Loke "has demonstrated continuing efficiency in teaching practice, satisfactory performance and professional growth." The respondent explained that an asterisk on this document indicates that Mr Loke was the subject of informal support. Mr Loke does not accept that explanation and makes the point that there is no reference to what the asterisk means on the document. The respondent goes on to say that although the informal support program had not begun when the Annual Review was signed, attempts had been made since 16 August 2012 to start that process. According to the respondent, it is only where an employee is on a formal improvement program that the Annual Review document is not signed. 25Both parties appear to accept that the informal support program had not been implemented at the time of the Annual Review. Despite that, the existence of an Annual Review document certifying that Mr Loke has demonstrated continuing efficiency in teaching practice, supports his claim that his performance was satisfactory. 26Mr Loke tendered two documents prepared by Mr Roukanas, a PD/Health/PE teacher, who had been acting as his support person. The first document is a memorandum dated 16 August 2011, which concludes that Mr Loke's lesson was well constructed and articulated and there were no points requiring attention. The second document is a statement from Mr Roukanas dated 19 May 2013 setting out his assessment of Mr Loke's performance and expressing surprise that after completing the informal support program he was placed on a formal improvement program for ten weeks. 27Mr Loke tendered a third document which was a lesson observation sheet dated 13 February 2013 prepared by Christie Absalom, an Early Career Teachers Consultant. 28The respondent provided a brief chronology of events from 16 May 2011 to 14 August 2012. That chronology records that on 16 May 2011 Mr Loke had discussions with the Head Teacher in relation to marking guidelines and criteria and consistency in marking. On 25 May 2011 Mr Loke met with the Principal in relation to the content of his lessons and the need for preparation. The Head Teacher raised performance issues with Mr Loke directly on 1 November 2011. On 4 November 2011 the Principal emailed Mr Loke raising concerns about his performance and the possibility of an informal support program. During this time Mr Loke resisted attempts by the Head Teacher to observe his lessons. 29Although Mr Loke has provided some evidence that his performance was satisfactory, that was not the opinion of either the Head Teacher or the Principal. They had raised performance issues with him throughout the second half of 2011 and again in August 2012. The decision to place Mr Loke on an informal support program had been contemplated for more than a year before the decision was implemented. That suggests that Mr Loke's performance, not his race, was the motivation for that decision. If race was a motivation, it is more likely that the decision would have been made much earlier. 30It is highly unlikely that Mr Loke would be able to adduce sufficient evidence from which an inference could be drawn that race was a factor. Second complaint of race discrimination 31In relation to the second complaint of race discrimination, there is an actual comparator - Mr Solis. Mr Loke seeks to compare the way he was treated with the way Mr Solis, who is not of Indian descent, was treated. The respondent submitted that their situations are not comparable because Mr Solis had a different role from Mr Loke. He was hired casually for various tasks including assisting a technician to install equipment for one day and casual relief teaching. 32Even if he could prove that he was treated less favourably than Mr Solis, Mr Loke would also have to prove that his race was a reason for that treatment. Again, there is no direct evidence that race was a factor and a tribunal hearing this case would be asked to draw an inference to that effect. In my view, the respondent has provided a credible explanation for the way Mr Loke was treated compared with the way Mr Solis was treated. 33If this matter were to proceed to hearing, it is highly unlikely that the Tribunal would draw an inference that Mr Loke's race was a reason for the treatment. Order Leave is refused for the applicant's complaints to proceed. 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: 27 September 2013