Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dezfouli v Justice Health and Forensic Mental Health Network (No 7) [2018] NSWCATAD 162 Hearing dates: 12 June 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: Leave to proceed with the complaint of victimisation is refused. Catchwords: ANTI-DISCRIMINATION – Where complaint of victimisation declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Carroll v Department of Family and Community Services [2015] NSWCATAD 82 Jones v Ekermawi [2009] NSWCA 388 Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 Category: Procedural and other rulings Parties: Saeed Dezfouli (applicant) Justice Health and Forensic Mental Health Network (respondent) Representation: Solicitors: Applicant by telephone Justice Health and Forensic Mental Health Network legal adviser (respondent) File Number(s): 2018/00167707 REASONS FOR DECISION 1. Mr Dezfouli complained that a nurse, employed by the respondent ("the Nurse"), sexually harassed him in breach of the Anti-Discrimination Act 1977 (AD Act). Mr Dezfouli also complained that he was victimised by other of the respondent's staff members after making the sexual harassment complaint and that the respondent introduced a policy of requiring a minimum of two staff to approach him. The President of the Anti-Discrimination Board ("President") declined his complaint of victimisation as lacking in substance: AD Act, s 92(1)(a)(i). 2. Mr Dezfouli applied to the Tribunal for leave to proceed with his complaint of victimisation in the Tribunal. 3. The Tribunal may give Mr Dezfouli permission for his complaint to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Dezfouli to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3]. 4. I have decided not to give Mr Dezfouli permission for his victimisation complaint to go ahead because it is highly unlikely that he would be able to substantiate it. Background 1. On 18 December 2017, Mr Dezfouli wrote to the President alleging that, after he had complained about the Nurse to the Anti-Discrimination Board ("Board"), the Registrar, Nurse Unit Manager and the Shift Leader met with him "which was very intimidating to be cornered by three of them and getting interrogated by them." Since that meeting, Mr Dezfouli claims that the attitude of those staff members had: "become more hostile and provocative towards me, more than before and on Wednesday I was informed by my Primary Nurse … that from now on I will be approached by two nurses at all times which is another discrimination because no other patient get [sic] approached by two nurses except me." 1. The Board accepted Mr Dezfouli's complaint of victimisation on 5 January 2018 for investigation under s 89B of the AD Act. Victimisation complaint 1. If the complaint were to proceed, Mr Dezfouli would have the onus of establishing that he had been victimised. Section 50(1) of the AD Act provides: "50 Victimisation (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." 1. In summary, to prove victimisation Mr Dezfouli would have to prove that: 1. he did one or more of the things listed in (a) – (d): (the trigger); 2. the respondent subjected him to a detriment; and 3. the detriment was on the ground that Mr Dezfouli did one of the things listed in (a) – (d): (causation) (see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]). Trigger 1. There is no dispute that Mr Dezfouli made a complaint of sexual harassment against the Nurse, so that there was a "trigger." The other two matters are, however, contested. Detriment 1. The respondent denies subjecting Mr Dezfouli to a detriment. It says that the meeting was a meeting of Mr Dezfouli's multi-disciplinary team, a meeting regularly offered to him and offered to all patients. It denies that anyone was hostile or provocative towards Mr Dezfouli. The respondent accepts that it put in place a policy that Mr Dezfouli was to be approached with a minimum of two staff members in attendance. It says that this was a response to a serious of complaints made by Mr Dezfouli that he has been victimised and/or sexually and verbally abused by hospital staff. 2. It is unlikely that Mr Dezfouli could establish, if the complaint were to proceed, that the respondent's staff members had subjected him to a detriment by being hostile or provocative towards him. He has not given any details of what that alleged hostility or provocation consisted of, other than to say that the Nurse Unit Manager had asked him why he did not make the sexual harassment complaint directly to her. 3. It is doubtful that the policy of requiring two staff members to approach Mr Dezfouli is a "detriment," although this is possible. This measure may even operate to protect him, as he is concerned about potential sexual harassment. Causation 1. On the third issue, Mr Dezfouli is unlikely to be able to establish that he suffered any detriment on the ground of making a sexual harassment complaint about the Nurse. The respondent says that the policy that two staff members approach Mr Dezfouli was adopted in July 2017, before the complaint of sexual harassment against the Nurse was made. This is supported by a letter written by the Chief Executive of the respondent in March 2018. Conclusion 1. For these reasons, the complaint lacks substance and it is not fair or just for it to proceed. ORDER 1. Leave to proceed with the complaint of victimisation is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 July 2018