Awad v Western Sydney Local Health District [2013] NSWADT 287

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Awad v Western Sydney Local Health District [2013] NSWADT 287 Hearing dates: 19, 20 and 21 June 2013 Decision date: 13 December 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Ms J Schwager, non-judicial member Ms J McClelland, non-judicial member Decision: 1. The applicant's complaints of direct race discrimination are not substantiated. 2. The applicant's complaint of indirect race discrimination is substantiated. 3. The respondent is enjoined from continuing to impose the requirement of "demonstrated excellence in at least one clinical specialty practice" for appointment as a Grade 3 pharmacist. 4. The applicant's complaint of victimisation in relation to the Grade 3 Pharmacist Antimicrobial Stewardship Program position is not substantiated. 5. The applicant's complaints of victimisation in relation to his application for the re-advertised position of Grade 3 Pharmacist Clinical coordinator position are substantiated. 6. The respondent is ordered to pay the applicant $10,000 within 35 days of the date of these reasons. 7. The respondent's application for costs is refused. Catchwords: ANTI-DISCRIMINATION - complaints of direct and indirect race discrimination in employment and victimisation - whether requirement of "demonstrated excellence" in at least one clinical specialty practice is an unreasonable requirement for promotion to Grade 3 pharmacist - whether head of department victimised applicant by convening selection panel when applicant had made a complaint of discrimination against him Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Wollongong City Council v Bonella [2002] NSWADTAP 26 Sivananthan v Commissioner of Police, NSW Police Service NSWADT 44 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Waters v Public Transport Corporation (1991) 173 CLR 349 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Jones v Trad [2013] NSWCA 389 Category: Principal judgment Parties: Sami Awad Western Sydney Local Health District Representation: Henry Davis York Lawyers (Respondent) Applicant (in person) File Number(s): 121080 121091