Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thamotharampillai v National Accreditation Authority of Translators and Interpreters Ltd [2019] NSWCATAD 60 Hearing dates: 5 March 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 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 Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245 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: Thiyagarajah Thamotharampillai (applicant) National Accreditation Authority of Translators and Interpreters Ltd (respondent) Representation: Counsel: Solicitors: Applicant in person Meyer Vandenberg (respondent) File Number(s): 2019/17028 Publication restriction: Nil REASONS FOR DECISION 1. Mr Thamotharampillai complained that the respondent ("NAATI") had victimised him for lodging a complaint of race discrimination with the Anti-Discrimination Board ("Board") and pursuing it in the Tribunal. The race discrimination complaint was that NAATI had failed him in an accreditation test in 2016 due to his race. 2. After the parties had settled their dispute about race discrimination, Mr Thamotharampillai wrote to the Board again, claiming that the two markers of his 2016 test were deliberately failing candidates to secure their own positions as interpreters, which was a conflict of interest. He said that he had raised this with NAATI, but NAATI did not take any action and that he had been treated unfairly and victimised by NAATI. 3. The President of the Board ("President") declined his complaint of victimisation as lacking in substance: Anti-Discrimination Act 1977 (AD Act), s 92(1)(a)(i). 4. I have decided not to give Mr Thamotharampillai permission for his victimisation complaint to go ahead in the Tribunal. It is lacking in substance and it would not be fair or just for it to proceed. Background 1. On 9 March 2016, Mr Thamotharampillai sat a professional interpreting examination with NAATI. He received a negative outcome, which he alleges was a result of discrimination on the ground of race, being that he is from the northern region of Sri Lanka. 2. Mr Thamotharampillai lodged a complaint with the Board in 2016 which was declined and referred to the Tribunal. The parties negotiated a settlement in June 2017, entering into a deed of settlement and, as a result, Mr Thamotharampillai sat the test again and was accredited at Level 2 (as a certified provisional interpreter). 3. In about October 2017, NAATI ceased conducting the Level 3 test (with a view to recommencing it after it had been revised). 4. In March 2018, Mr Thamotharampillai sent an email to the chief executive officer of NAATI asking for Level 3 accreditation (that is, to be a certified interpreter rather than a certified provisional interpreter). In the course of this email, he stated that the markers of his 2016 test both had Level 3 accreditation. He also claimed that the markers were working as interpreters, which was a conflict of interest. 5. The chief executive officer replied to Mr Thamotharampillai's email, stating that he had a lot of incorrect information and making some clarifications. 6. In June 2018, Mr Thamotharampillai emailed the chief executive officer of NAATI again, stating that TIS National has ceased giving jobs to Level 2 interpreters and that two of the six Level 3 interpreters in his language were the markers. He said that the markers failed him, which "clearly falls under conflict of interest." He asked for a special test until NAATI restarted the accreditation test. 7. The chief executive officer replied to Mr Thamotharampillai's email a week later, stating, among other things, that Mr Thamotharampillai had no evidence of any conflict of interest, and refusing his request for a special test. 8. At the end of June 2018, Mr Thamotharampillai emailed the chief executive officer again, stating that he "would like to reiterate that [he did] in fact have concrete evidence of conflict of interest" and providing some reasons in support. 9. There is no evidence that the chief executive officer replied to this email and Mr Thamotharampillai says he did not. I will assume, for the purposes of this decision, that that is correct. 10. On 1 August 2018, Mr Thamotharampillai lodged a victimisation complaint with the Board. He described the subject of his complaint as follows: "Recently it has come to my awareness that both markers [of his 2016 test] are also employed as interpreters and deliberately failing candidates to secure their own positions. Thus they are not adhering to the NAATI marking manual. Such actions clearly fall under conflict of interest. As a result of this I had significant mental stress and loss of income for couple of years. I have attempted to resolve this directly with NAATI, however, they did not take any action. I was treated unfairly and VICTIMISED by NAATI because I have filed a discrimination case against NAATI in 2017. NAATI wants to protect their markers despite the fact that the two markers made false witness statement [sic] in the affidavit, in favour of NAATI in the discrimination case I filed against NAATI in 2017." 1. After conducting an investigation, the President's delegate declined Mr Thamotharampillai's complaint as lacking in substance. The President's delegate reasoned that Mr Thamotharampillai had not established that NAATI subjected him to any action, detrimental or otherwise, that he would not have been subjected to but for his previous discrimination matter. 2. At Mr Thamotharampillai's request, the President referred his complaint to the Tribunal on 16 January 2019, under s 93A of the AD Act. The period of complaint referred was 30 June 2018 to 1 August 2018. Principles applying on a leave application 1. The Tribunal may give Mr Thamotharampillai 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). In exercising its discretion as to whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account when declining a complaint (Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245 at [18]; Jones v Ekermawi [2009] NSWCA 388 at [60]). 2. The onus is on Mr Thamotharampillai 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]. Victimisation complaint 1. If the complaint were to proceed, Mr Thamotharampillai 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. It is not in dispute that Mr Thamotharampillai brought proceedings against NAATI against under the AD Act (s 50(1)(a)). 2. If Mr Thamotharampillai were given leave for his victimisation complaint to proceed, he would have to prove that: 1. NAATI subjected him to a detriment; and 2. the detriment was on the ground that he had brought proceedings against NAATI under the AD Act Detriment 1. At the hearing, Mr Thamotharampillai described the detriment he had suffered as being mentally affected by failing the accreditation tests and losing income. 2. After the hearing, Mr Thamotharampillai provided a written summary of the detriments which he claims he was subjected to by NAATI. Under the heading "Summary of Detriments Incurred," Mr Thamotharampillai states that: 1. he received an unfair and incorrect outcome on his NAATI accreditation test in 2014, alleging that the markers had "deliberately failed him" with their own interests in mind (being to secure their own employment as interpreters); 2. he continued to receive unjust outcomes when he reattempted the NAATI accreditation test on several other occasions, including in March 2016 (the test which formed the subject of his discrimination complaint); 3. he lost a substantial amount of income as a result of failing the tests; 4. he raised the conflict of interest issue with NAATI but NAATI did not take any action or provide him with assistance. He did not receive any form of communication from NAATI for a substantial period prior to lodging his case with the Board. 5. NAATI's decision to ignore his complaint proves that his career development and income will be continually impacted, should the case not be dealt with by the Tribunal. 1. NAATI denies that the test markers were subject to any conflict of interest. It also says that it took action in line with its internal complaints policy upon receiving Mr Thamotharampillai's conflict of interest complaint, but ultimately advised that it would not grant the remedy Mr Thamotharampillai sought, being an upgrade to his interpreting credential. As it was not offering upgrades at that time to anyone, this was not a detriment. 2. At the hearing, Mr Thamotharampillai stressed that his victimisation complaint was not about NAATI's refusal to upgrade his qualifications. He said that his victimisation complaint was that NAATI failed to take any action in response to his complaint about the markers' conflict of interest. Causation 1. Mr Thamotharampillai has not clearly explained how he says the detriment he claims he has suffered was caused by NAATI's conduct. 2. Taking a beneficial reading of his document entitled "Summary of Detriments Incurred," it would appear that his allegation is that, because NAATI ignored his complaint about the markers' conflict of interest, his career development and income would be continually impacted. This is because he had not received "any appropriate action from NAATI." Mr Thamotharampillai does not specify what this "appropriate action" would be, but presumably his case is that it is either giving him Level 3 accreditation (as he requested) or taking some form of action against the markers. 3. NAATI says that the fact that Mr Thamotharampillai had brought the previous proceedings did not affect its response to the conflict of interest complaint. It says that it declined to upgrade Mr Thamotharampillai's interpreting credential because he had not demonstrated that he meets the skill requirements to attain that credential. Consideration 1. Mr Thamotharampillai has very weak prospects of establishing that any of the claimed detriments were causally connected to his previous proceedings in the Tribunal. 2. Mr Thamotharampillai claims to have been subjected to the detriments of loss of income, stress and lack of career development. I will assume, for the purposes of this decision, that he could establish that these detriments occurred, if I granted him leave to proceed with his complaint. 3. Mr Thamotharampillai's case is that these detriments arose from NAATI's decision to fail him in his various attempts at the accreditation test for Level 2. He appears also to attribute the detriments to NAATI's refusal of his request for Level 3 accreditation. 4. None of the claimed detriments arise directly from NAATI's handling of Mr Thamotharampillai's conflict of interest complaint. The claimed loss of income, lack of career development and stress arise from the decisions of NAATI not to give Mr Thamotharampillai a pass mark in examinations he sat between 2014 and 2016. It may be that, to some degree, NAATI's failure to accredit Mr Thamotharampillai as a Level 3 interpreter also contributed to this loss. 5. All of the claimed detriments are said to arise before the period of the referred complaint (30 June 2018 to 1 August 2018). They were not affected by NAATI's response, or lack of response, to Mr Thamotharampillai's conflict of interest allegations. Mr Thamotharampillai could not reasonably have expected that NAATI's response to his conflict of interest allegation would be to give him Level 3 accreditation, particularly in circumstances where NAATI was not offering anyone the upgrade to the interpreting credential during the complaint period. 6. Another possible detriment is NAATI's alleged failure to deal with Mr Thamotharampillai's complaint of a conflict of interest. 7. The chief executive officer responded to two of Mr Thamotharampillai's emails, alleging a conflict of interest, but (as I am prepared to assume), not to the third. In his two responses, the chief executive officer explained why he did not accept the conflict of interest allegation. It is doubtful that the chief executive officer's failure to respond to Mr Thamotharampillai's third email constituted a detriment within the AD Act. Even if it did, there is no evidence that one of the reasons for failing to respond to the email, or to deal more comprehensively with the allegations, was the fact that Mr Thamotharampillai had brought discrimination proceedings against NAATI. 8. Mr Thamotharampillai's argument, that NAATI ignored his conflict of interest complaint because he could establish it through evidence, makes no sense. The circumstance that a complainant has evidence to substantiate a complaint does not make it more likely that an organisation handling the complaint would ignore it. 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 New South Wales Civil and Administrative Tribunal. Registrar 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: 15 April 2019