ANASTASIA v Price Waterhouse Cooper Services Pty Ltd
[2020] FCCA 2190
•15 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANASTASIA v PRICE WATERHOUSE COOPER SERVICES PTY LTD | [2020] FCCA 2190 |
| Catchwords: ADMINISTRATIVE LAW – Disability discrimination – application to the Australian Human Rights Commission –whether the Australian Human Rights Commission dealt with the merits of the applicants complaint thoroughly – whether leave should be granted to bring the application to Court, pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – whether there was any disability discrimination towards the applicant by the respondent – the Court is not satisfied that there was any disability discrimination towards the applicant – leave pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) is refused – The application is dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PF, 46PH, 46PO, 46PO |
| Cases cited: Budini v Sunnyfield [2019] FCA 2164 James v Work Power Inc [2018] FCA 2083 Jones v Westpac [2020] FCA 228 Matthews v Markos [2019] FCA 1827 Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 Re Minister for Immigration and Multicultural Affairs v Ex parte Applicant S20/2002 (2003) 198 ALR 59 Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080 |
| Applicant: | MICHAEL ANASTASIA |
| Respondent: | PRICE WATERHOUSE COOPER SERVICES PTY LTD |
| File Number: | SYG 2379 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 10 August 2020 |
| Date of Last Submission: | 10 August 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 15 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Neumann, Eddy Neumann Lawyers |
| Counsel for the Respondent: | Ms Davern |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
Pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1992 (Cth), leave to apply to the Court is refused.
The application is dismissed.
No order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2379 of 2019
| MICHAEL ANASTASIA |
Applicant
And
| PRICE WATERHOUSE COOPER SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a chartered accountant. On 25 August 2018, the applicant made an application to the Australian Human Rights Commission (“the AHRC”), alleging disability discrimination, in breach of the Disability Discrimination Act 1992 (Cth) by Price Waterhouse Coopers Australia Pty Ltd (“PwC Australia”).
The allegation is that the applicant was discriminated against due to his Bipolar disorder and in particular, in respect of a job application he had made in early 2018, for a position with them at Global Tax Price Waterhouse Coopers (“Global Tax PwC”).
The Court understands that PwC Australia is the partnership entity of the large accounting firm, Price Waterhouse Coopers (“PwC”). The precise name of the respondent at the AHRC, will become important, as an issue in this matter.
On 16 July, the AHRC terminated the complaint under s 46PH(1B)(a) of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”), on the ground that the complaint was lacking in substance.
In an application filed on 2 December 2019, alleging unlawful discrimination, pursuant to s 46PO of the AHRC Act, the applicant sought orders by this Court that the respondent, PwC Australia, provide him with an apology, pay damages in the sum of $250,000.00, together with other ancillary orders.
Section 46PO(3A)(a) of the AHRC Act provides inter alia, that where a complaint has been terminated by the President, pursuant to s 46PF(1)(b) of the AHRC Act, an application to this Court must not be made unless the Court first grants leave to make the application.
Thus, as a preliminary step in the matter, is that the Court needs to consider whether or not it is appropriate to grant leave for the application to continue, beyond an initial stage.
The Law
The applicable law in relation to s 46PO(3A) of the AHRC Act was comprehensively considered by Mortimer J, in James v WorkPower Inc [2018] FCA 2083 (“James”) where the following was said at [37]-[38]:
[37] I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by the applicant are reasonably arguable, and are - at least- not fanciful. This is consistent with the language used in
s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them the whole proceeding, but not to impose a barrier of any substantively greater level.
[38] There may be a range of other permissible considerations including:
(1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for the delay
(5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this fact might be considered; and
(8) other factors that are often considered in leave applications- such as prejudice to a party.
In Matthews v Markos [2019] FCA 1827 at [31], Abraham J referred to the reasoning of Steward J, in Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 (“Pathmanathan). In that case, Justice Steward affirmed that the filter process created by s 46PO(3A) of the AHRC Act, does not set a ‘high bar’ and indeed, a case that is ‘not compelling’ and ‘only just arguable’ was inter alia, sufficient to grant leave.
In Budini v Sunnyfield [2019] FCA 2164 (“Budini v Sunnyfield”), Charlesworth J applied James, and went on to say at [52]:
To her Honour’s observations I would add the qualification that, in a case where the respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgement in whole or in part either because:
a)the applicant has no reasonable prospect of successfully prosecuting the proceeding; or part of the proceeding; or
b)no reasonable cause of action is disclosed.
In Jones v Westpac [2020] FCA 238, Kerr J confirmed at [73], that he did ‘not cavil with a qualification stated in Budini and concurred at [87], that granting leave to commence a claim with ‘no realistic prospect of success…’ would be contrary to the purpose of s 46PO(3A) of the AHRC Act, which was designed to filter out cases where the merits are disproportionate to the time and resources likely to be consumed.
Counsel for the respondent submits that the above approach has again, been followed very recently by Gleeson J, in Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080.
The Applicant’s Evidence and Submissions.
The applicant states that he commenced employment with the respondent in Sydney in 1995.
In January 2009, the applicant states that he was diagnosed with Bipolar II disorder and hospitalised for a short time afterwards, in February 2009.
In around February 2012, the applicant was employed by the respondents Singapore office, as a full-time Senior Manager with its tax liner service until September 2012. In October 2012, the applicant was transferred to the respondents Thailand practice. In around June 2014, the applicant states that he sent a text message to one of his superiors, Ms Rao, stating that he would be not coming to work for a few days. The applicant alleges that he was told that he was being required to resign for failing to give notice of his absence from work. The applicant alleges that he was forced to resign on the basis that if he did not do so, he would not receive his entitlements, in respect of leave and other matters.
The applicant alleges that he subsequently applied for a position with one of the respondents major clients. The applicant was unsuccessful in that application. During feedback, the applicant alleges that he was told that the Senior Manager within the respondent, had informed his prospective employer, that he had left the Thailand office, not due to the to his performance, but due to the environment that he was subjected to in the Thai office and because he was Bipolar.
During the course of 2015, the applicant made numerous attempts to gain employment but was unsuccessful. The applicant states he believes that the respondent had interfered in the application process during his application, for subsequent employment. The applicant made a complaint to the respondent’s Global Head of Ethics.
In around September 2015, the applicant attended an investigation meeting with Baker and McKenzie, lawyers for the respondent’s Thailand practice, to discuss his dismissal. The applicant says he explained his condition but was subsequently advised that no further action would be taken.
On around 4 April 2018, the applicant applied for the role of Global Tax PwC, at the respondent’s Sydney office. On the application form, the applicant states that he disclosed his bipolar disorder condition. On 5 April 2018, the applicant received an email from the respondent advising him that he had not been selected for the role. The applicant states that he believes the summary dismissal of his application was unwarranted, given his significant employment experience and qualifications with respect to taxation and other positions held in prominent accounting firms.
The applicant states that he was offered a role with KPMG UK in July 2019, who is his current employer. KPMG UK are aware of the applicant’s bipolar condition.
The applicant states that in about August 2019, he sought follow-up in a phone call with Mr Mark O’Reilly, of the respondent, as to why he had not received an interview for the position in Sydney. During this conversation, the applicant states that Mr O’Reilly said:
The feedback I have received from Chris Wu from the PwC Singapore office, was that Chris had spoken to Paul Stitt who had provided information about your dismissal as a result of your absence without leave and discussed your bipolar condition and for these reasons, you did not receive an interview for the Sydney role or even a role with PwC Singapore.
The applicant asserts that the summary dismissal of his application by the respondent, was based on his disability and the fact that the respondent had procured his Human Resources (“HR”) file (which contained factually incorrect information about his previous employment with the respondent), from the Thailand office. The applicant asserts that the basis of this belief, was that his employment file had previously been shared from PwC Sydney to PwC Singapore, before his appointment to the PwC Singapore office. The applicant’s appointment to PwC Thailand involved the sharing of his HR information from the PwC Singapore office.
In written submissions, the legal representative for the applicant stated that the respondent’s refusal to hire or even interview the applicant, cannot be said to be, due to any inexperience on behalf of the applicant. In oral submissions, it was submitted that the applicant was very experienced in this area and that his experience made him an ideal candidate for the role, or at least, an interview.
It was submitted on behalf of the applicant, that the circumstances of the parties ought to be a primary consideration with respect to the question of leave. The impact of the allegations of the applicant’s life are such that the Court should consider granting leave to hear the application. Further, the AHRC did not thoroughly deal with the merits of the applicant’s complaint. The decision to terminate notes that aspects of the applicant’s case were “unclear” and thus the “complaint was considered and progressed a complaint about disability discrimination in employment under the DDA only”. It was submitted on behalf of the applicant, that he should not be prejudiced by his failure to properly clarify all aspects of his case, or his relative inexperience and lack of clarity in his submissions, in circumstances where he was not legally represented.
The Respondent’s Evidence and Submissions
The respondent relied upon two affidavits, the first being Nicholas Paul Houseman, sworn 6 August 2020 and the second being Edwin Baghdasarayan, sworn 6 August 2020. Both deponents are partners of PwC Australia.
Mr Houseman deposes that on 11 February 2018, he received an email from a Mohamed Serokh, a Tax Partner in the PwC Middle East firm, about a Senior Manager in the Transfer Pricing area of the PwC Middle East firm, who wanted to move to Sydney and take a role with the respondent, on a secondment basis. As Mr Baghdasarayan was responsible for recruitment for the Sydney Global Tax team, Mr Houseman forwarded his reply to Mr Serokh, to him. In late March 2018, approval came through for the Senior Manager to be seconded to the Sydney office of PwC. Mr Houseman deposes that he was not aware that the applicant had applied for the role of Senior Manager – Global Tax with PwC Sydney.
Mr Baghdasarayan deposes that PwC Australia is a member of the Global PwC network of firms, each of which is a separate legal entity. Staff of PwC Australia are employed by Price Waterhouse Coopers Services Pty Ltd, as Trustee for the Price Waterhouse Coopers Trust. Mr Baghdasarayan also holds the role of People Partner for the Global Tax Team in Australia. This role includes recruitment.
In that role, Mr Baghdasarayan met approximately once a month with Ms Anne Larkin, who was the Talent Acquisition Manager, responsible for recruitment for a number of teams within PwC Australia, including the Global Tax Team. From records, Mr Baghdasarayan deposes that he is aware that an advertisement was placed in late 2017, for the position of a Senior Manager in the Global Tax Team in Sydney. Again, from a review of business records, between October 2017 and February 2018, a number of candidates for the role were rejected, including without an interview.
On 4 April 2018, the applicant applied for the role. Mr Baghdasarayan deposes that he was not aware of the applicant’s application, until his involvement in these proceedings. On or around 5 April 2018, Ms Larkin rejected five applications, including the applicant’s application. The applicant’s application includes the notation:
“status changed to rejected in step review” and “more qualified candidates selected event date, 5 April 2018 10:36 AM”
Mr Baghdasarayan does not recall having a specific conversation with Ms Larkin to inform her that the role had been filled through secondment. Based on Mr Baghdasarayan’s review of the respondent’s business records, it appears that there was a delay between the time that the decision was made for the position to be filled by secondment and the time that Ms Larkin took steps to remove the advertisement for the role.
Mr Baghdasarayan denies that the applicant’s application was unsuccessful due to any reason related to his disability. Further, neither Mr O’Reilly, Mr Woo nor Mr Stitt, were involved in the recruitment process and Mr Baghdasarayan never discussed the applicant or any matter relating to him, with Mr O’Reilly.
Attachments to Mr Baghdasarayan’s affidavit confirm that a secondment of an existing employee from the Middle East, was being discussed in late February 2018. An email dated 22 February 2018, confirms that it was agreed a secondment should take place commencing in September 2018. As at 27 March 2018, the secondment had been agreed to, subject to a requirement for a final sign off by a Mr Calleja.
In submissions, Counsel for the respondent submitted that to make an even arguable case, in respect of a claim of direct disability discrimination in employment, it would require the applicant to demonstrate that it is at least arguable that he was treated less favourably than a person without the disputed disability, in circumstances that are not materially different, by the respondent, in determining who should be offered employment.
Apart from the evidence, that is not contested, that the applicant noted that in his application for the role that he suffered from Bipolar II disability, no direct evidence is provided that he was not selected for the role due to his disability. Whilst it was suggested by Counsel for the applicant that this could be inferred, it was submitted on behalf of the respondent, that an inference of fact must be supported on logical grounds and not mere allegation: (see Re Minister for Immigration and Multicultural Affairs v Ex parte Applicant S20/2002) (2003) 198 ALR 59 at [71]).
It is submitted that by the time the applicant lodged his application on 4 April 2018, a preferred candidate had been identified and the role was offered to the person who had been identified by way of a secondment. The applicant’s application for the role was simply not considered. The applicant along with four other applicants for the role, were notified by the recruiter that their application had been unsuccessful, on 5 April 2018.
A further argument was raised in oral submissions that the applicant was precluded from proceeding with this application, as the respondent in the AHRC complaint was PwC Australia, the partnership arm of the entity, whereas the respondent in the current proceedings was Price Waterhouse Coopers Services Pty Ltd.
In these circumstances, it is submitted by Counsel for the respondent, that leave should not be granted for the matter to proceed. Should the matter be dismissed, the respondent seeks no order as to costs.
Consideration
In determining whether or not leave should be granted, the Court is satisfied that the requisite test is whether or not the claims made by the applicant are ‘reasonably arguable, and are – at the least - not fanciful’; (see James v WorkPower at [37]).
The above, is not a high bar and leave may be granted where the case is “only just arguable”; (see Pathmanathan v St John of God Healthcare Inc).
The applicant claims that he was summarily rejected for the role that he applied for, due to his acknowledged disability. This is explicitly denied by the respondent, as evidenced by the affidavits’ of Mr Houseman and Mr Baghdasarayan. The Court is satisfied, based on their evidence, that there was a decision made to fill the vacancy by way of an internal secondment from another area of PwC. The Court is satisfied that there was a failure to communicate that decision to the recruitment arm of the respondent. As a result, the advertisement was not removed from public display.
A private employer is not subjected to any merit requirement in a recruitment process. They are entitled to employ any person they think fits a position, regardless of their relative merit, as compared to another person, provided that they act in accordance with the law. In this case, in relation to disability discrimination. The respondent was entitled to select a person to fill the role who had less experience than the applicant, notwithstanding the applicant’s view that he was ideal for the role.
No direct evidence has been provided by the applicant from either Mr Stitt or Mr O’Reilly, to confirm what is at best, an assumption on the applicant’s part, that he was the subject of disability discrimination by PwC Australia.
In circumstances where there is a lack of any direct evidence of disability discrimination and is conceded by Counsel for the applicant, that the case relies entirely on inferences to be drawn from the applicant’s employment history with PwC, the Court is not satisfied, that the requisite test in s 46PO(3A) of the AHRC Act has been met. While it was unfortunate that the applicant’s application for a position in Sydney was rejected on the same day, the Court is satisfied that he was but one of a number of applicants who were rejected. The reason for the rejection was that the position was filled by a secondment from the Middle East division of PwC. The Court is satisfied that there was a delay between the decision to fill the position by secondment and applicants’ being notified that the position had been otherwise filled.
The Court is not satisfied that there was any disability discrimination towards the applicant. Accordingly, leave pursuant to s 46PO(3A) of the AHRC Act is refused.
During the course of argument, an issue arose as to the correct identity of the respondent, that being PwC Australia, or Price Waterhouse Coopers Services Pty Ltd. The respondent argued that the applicant was barred from proceeding in this Court, as he had named PwC Australia as the respondent, whereas it was submitted that the correct respondent was Price Waterhouse Coopers Services Pty Ltd, who was the relevant employer. Given the findings above it is not necessary to answer this question.
Conclusion
Pursuant to s 46PO(3A) of the AHRC Act, leave to apply to the Court is refused.
Accordingly, the application is dismissed.
Noting the concession made by the respondent, there will be no order as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 15 September 2020
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