NSW Tribunal Rejects Victimisation Complaint Against Employer

The Tribunal refused leave for a complaint of victimisation against an employer due to a lack of evidence showing a causal link between the complaint and subsequent alleged victimisation.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2019] NSWCATAD 241 Hearing dates: 15 October 2019 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: Leave for the complaint of victimisation to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977. Catchwords: ANTI-DISCRIMINATION – application for leave to proceed with complaint - complaint of victimisation – whether fair or just to grant leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: [NAME] v Department of Family and Community Services [2015] NSWCATAD 82 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCCA 388 Category: Procedural and other rulings Parties: [NAME] (Applicant) [NAME] (Respondent) Representation: Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2019/00321839 Publication restriction: Nil

REASONS FOR

DECISION 1. This is an application by [NAME] for leave for a complaint of victimisation against his employer [NAME] to go ahead.

2. The complaint was declined by the President of the [NAME] ([NAME]) on the basis that the President considered the complaint was lacking in substance. In those circumstances leave is required under s 96 of the Anti-Discrimination Act 1977 (NSW) for [NAME] to proceed in the Tribunal with his complaint.

Principles for Granting Leave 1. The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates."

1. When deciding whether to grant leave the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the Anti-Discrimination Act including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60].

2. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.

The President of [NAME]'s reasons for declining complaint 1. The [NAME] declined the complaint on 19 August 2019 as the President considered the complaint was lacking in substance. The reasons for the decision are set out at p 92 of the President's Report. "The reasons for my decision are: • The complainant has not provided any information to establish any connection between his complaint of race discrimination in 2010 and his current allegations of victimisation. • The complainant has therefore failed to establish a breach of section 50 (1) of the Act. On the basis of the information provided to the Board by the complainant and the Respondent, I consider that the allegation of disability discrimination in employment and victimisation is lacking in substance for the above reasons."

Factual basis of complaint 1. The factual basis of the complaint is set out in a letter to the [NAME] from the Applicant received on 5 March 2019.

2. In summary [NAME] stated that he had previously made a complaint to the [NAME] about his treatment at work in 2010.

3. From 2017 – to March 2019 he alleged that he had been subjected to victimisation by the Respondent in four respects:

1. He had been subjected to verbal abuse by [NAME] on 4 June 2018.

2. He had been required to attend a meeting with his managers, when he was told that a complaint against him had been made by the nurses on his ward.

3. In January 2019 the armrests of his chair were slashed; and 4. The Respondent failed to accept his allegations of victimisation after they were raised with the chief executive officer.

[NAME]'s request for grant of leave to proceed.

1. At the hearing [NAME] told the Tribunal that he wished to be granted leave as the [NAME] did not have certain evidence to support his complaint. If leave for the complaint to proceed were granted, he would ask the Tribunal to request information from the Respondent's IT department. This would show the user IDs of those who had accessed his HR file from 15 June 2017 to 1 July 2019. It was critical and crucial to his complaint for him to be able to prove that someone had had access to his previous files relating to his first complaint to the [NAME]. He had not previously understood the scope of victimisation. He said that there had been no follow up after his previous complaint in 2010 from his employer about the bullying of him. 2. [NAME]'s wife [NAME] said that they felt that someone would have access to the information about her husband's previous complaint. There was gossip going round and people knew of his past. They did not want to involve other staff as the Department of Health is a small world. However, they cannot do the investigation of the complaint on their own. [NAME] said she was not sure what prompted the treatment of her husband but "it makes you wonder." There were inconsistencies between the reports from each of the witnesses relating to the investigation of [NAME]'s alleged shouting at the [NAME] Manager. It seems that any time her husband complains - he is always in the wrong. 3. [NAME] said the things that he had to say were only useful once there is a legal proceeding on foot. Then there would be concrete evidence and details. [NAME] said that he would not go to the Respondent's [NAME] to seek help as he does not trust that this area would assist him. The reports about him were biased. He does not approach the Human Resources area because he does not think that they treat him fairly. He was happy to admit when he had made an error. He had worked at Westmead hospital successfully for 16 years without difficulty. However, it was after a restructure at [COMPANY] that things have changed in his treatment by the Respondent over the last three years.

Respondent's response 1. In response to the complaint the Respondent had told the President of the [NAME] that it denied that [NAME] had been victimised as a consequence of his complaint in 2010. The present victimisation complaint related only to events occurring since 2017. The nursing unit management team were all different employees to those employed at the time of [NAME]'s complaint in 2010. The problem was that [NAME] had been in conflict with some of his colleagues. It appeared that he did not engage cooperatively in attempts to understand or resolve conflict situations. The incident in relation to [NAME] was an example of an incident where matters between staff had escalated unnecessarily. The incident had been investigated and [NAME] had been found to have engaged in behaviour which was not in keeping with the New South Wales Health Code of Conduct. [NAME] had been unwilling to discuss the matter in a temperate fashion in a meeting with his managers. The chair that [NAME] alleged had been slashed, is a chair that is used by a number of hospital employees – not solely [NAME]. There are several shifts each day during which the chair is used. Further the Respondent had looked at the chair and had concluded that the chair had not in fact been slashed but rather that it had been subject to wear and tear. [NAME] had been provided with the formal disciplinary warning after he had raised his voice and refused to complete a task requested of him by a colleague. [NAME] had declined all invitations to attend a meeting with the Respondent to resolve the issues referred to in the warning.

2. The Respondent denied that the Chief Executive Officer had failed to review [NAME]'s complaint. Management asked to have a discussion with [NAME] in early 2019 and again in May 2019. However, [NAME] had declined to attend meetings to discuss his complaints. It appeared to the Respondent that [NAME] disagrees with all levels of management and views matters only through his own eyes. [NAME] regularly escalates matters which makes it difficult to engage with him and discuss them. There were complaints from other staff concerning [NAME]. [NAME] complains when he is asked to do things. There was an email from [NAME] setting out that things were not being done.

Accordingly, these complaints against [NAME] were not deliberate acts of victimisation but rather day to day workplace episodes.

3. The Respondent contended that it was not fair and just to grant [NAME] leave to proceed with his complaints as the Respondent had attempted to investigate matters as [NAME] raised them. There was no evidence that the matters of conflict that [NAME] raised were the result of his complaint in 2010. Rather they were matters arising out of day to day workplace needs. The President of the [NAME] had declined the complaint because it was lacking in substance and no substance had been demonstrated by [NAME].

Merit of the complaint 1. When assessing the merits of the complaint the legislative provisions must be examined. The allegation is that the Respondent breached section 50 of the Anti-Discrimination Act. Those provisions are set out below.

Section 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. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

1. In summary, to prove victimisation [NAME] 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 [NAME] did one of the things listed in (a) – (d): (causation) (see [NAME] v Department of Family and Community Services [2015] NSWCATAD 82 at [24]).

Trigger 1. There is no dispute that [NAME] made a complaint to the [NAME] concerning his employment by the Respondent in 2010. This would likely amount to alleging a contravention of the AD Act, or bringing proceedings under the ADA, that would constitute a "trigger" for the purposes of s 50(1)

Detriment 1. [NAME] has complained of detriments including being subjected to verbal abuse by [NAME] on 4 June 2018; being required to attend a meeting with his managers in relation to a complaint made by the nurses on his ward about him; the alleged slashing of the armrests of his chair and the Respondent failing to accept the allegations of victimisation. The Tribunal is required to accept [NAME]'s complaint at its highest, hypothetically assuming that these allegations of detriment are factually correct for the purpose of assessing this leave application.

Causation 1. If [NAME] were to show that he was subject to detriment he must then show that the detriment arose because of, or that it could be attributed to his making of a complaint in 2010. At the hearing [NAME] told the Tribunal that he was seeking leave for the complaint to proceed because the [NAME] may not have certain evidence to support his complaint. If he were permitted leave, he would use the Tribunal's processes to attempt to obtain evidence of access made to his HR file relating to his complaint in 2010. He said it was critical and crucial to prove that someone had access to his file for him to demonstrate his complaint. [NAME] had told the Tribunal that she and her husband felt that somebody would have had access to [NAME]'s files relating to the 2010 complaint to the [NAME] when the investigation report into the more recent complaints against [NAME] was written. [NAME] also said that she was not sure about the conclusions about the investigation, but it made her wonder about why these things were happening. [NAME] told the Tribunal that the things he had to say were only useful once the matter became a legal proceeding and there was concrete evidence and details. 2. [NAME] has not produced evidence of any connection between his complaints to the [NAME] in 2010 (causation element) and his more recent complaints of detriment in his treatment by the Respondent. His submissions to the Tribunal essentially conceded that he did not have this evidence at present and that he would attempt to obtain it through the procedural facilities of the Tribunal.

3. The Tribunal takes the complaint before it at its highest. There was no evidence in the complaint referred to the Tribunal by the President of the [NAME] of a causal connection between [NAME]'s complaint to the [NAME] in 2010 and any detriment he may have experienced since that time.

4. In these circumstances the Tribunal cannot be satisfied that there is evidence of causation required for [NAME] to make out his complaint of victimisation.

5. The President of the [NAME] has declined the complaint as lacking in substance. The Tribunal concludes that it is not fair and just for the complaints of victimisation to proceed because it is highly unlikely to succeed if they go to a hearing.

6. In these circumstances the Tribunal considers that it is not fair and just to allow [NAME] to proceed with his complaint of victimisation.

Decision 1. Leave to proceed is refused.

Orders 1. The Tribunal orders: 1. Leave for the complaint of victimisation to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977.

********** 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: 29 November 2019