Ary v Director General, NSW Health

[2013] NSWADT 30

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Ary v Director General, NSW Health [2013] NSWADT 30
Hearing dates:	4 December 2012 and 29 January 2013
Decision date:	06 February 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The application for leave for the complaint to proceed is refused.
Catchwords:	DISCRIMINATION -race discrimination in employment - application for leave to proceed - complaint lacks merit
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Category:	Interlocutory applications
Parties:	Tazra Ary (Applicant) Director General, NSW Health (Respondent)
Representation:	T Ary (Applicant in person) S Bull (Respondent)
File Number(s):	121129

REASONS FOR DECISION

Introduction

1. Ms Ary, who is of Kurdish background, complained of corruption at her workplace - the Sydney South West Pathology Service (SSWPS). She also complained of being bullied, harassed and poisoned by her manager and work colleagues. The President of the Anti-Discrimination Board declined Ms Ary's complaint of race discrimination as "lacking in substance". None of Ms Ary's allegations relate to her race. For that reason, it is neither fair nor just to allow her complaint of race discrimination under the Anti-Discrimination Act 1977 to go ahead: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ.

Allegations

1. The period of the complaint as referred by the President of the Anti-Discrimination Board is 1 November 2010 to 25 October 2011. Events, including the termination of Ms Ary's employment, which took place outside that period are not part of the complaint.

1. Ms Ary's main allegations are that:

(1)   On 25 November 2010, Ms Ary met with her manager in his office and raised concerns about problems occurring at work. The manager locked the door and threatened her.

(2)   On 22 December 2010 Ms Ary disclosed allegations of corruption to the General Manager of Liverpool Hospital but rather than involving her in the investigation, hospital employees accused her of being mentally ill to cover up the corruption.

(3)   Following the allegations, her work colleagues stopped communicating with her, hid blood specimens from her to get her into trouble, incorrectly addressed patient's confidential results and threw rubbish at her.

(4)   Following an investigation of the corruption allegations, the matter was closed and Ms Ary was accused of having a mental illness.

(5)   On 28 June 2011 Ms Ary applied for a Technical Officer position but was told that it had been 'pulled' because of budget cuts.

(6)   On 15 September 2011, while eating her lunch at work, Ms Ary had a burning sensation and felt sharp pain. She attributes this to being poisoned.

(7)   On 17 September 2011, Ms Ary was admitted to Liverpool Emergency Department in relation to the incident on 15 September and complains about the treatment she received.

1. On 19 November 2011, Ms Ary's employment was terminated on the ground that she was unable to carry out the inherent requirements of the job. That decision was made partly on the basis of a report from Dr Stephen Allnut, a forensic psychiatrist, dated 21 August 2012. Dr Allnut diagnosed Ms Ary as having a delusional disorder, persecutory type. Ms Ary obtained a report from another psychiatrist, Dr Vrjosseck. In his report of 21 January 2013, he said that Ms Ary's conspiratorial beliefs would appear to be of a delusional nature. Ms Ary denies that she is mentally ill. I do not need to make a finding about that issue.

Legislative provisions

1. Ms Ary identified her ethnic origin as Kurdish and her national origin as Iranian. Both constitute a race: AD Act, s 4. Ms Ary alleges that her employer has breached s 8(2) of the AD Act which states that:

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment

c) by dismissing the employee or subjecting the employee to any other detriment.

1. Ms Ary was an employee and was afforded certain terms and conditions of employment. She also alleged that she has been subjected to various 'detriments'. SSWPS did not dispute that the conduct about which Ms Ary complains relates to the terms and conditions of her employment and/or that it constitutes a detriment.

1. If the matter went to hearing, the issue would be whether, when affording those terms or conditions or subjecting her to a detriment, Ms Ary's employer did so on the ground of her race. I understand Ms Ary's complaint to be one of direct race discrimination as defined in s 7(1)(a):

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race

1. To substantiate a complaint of direct race discrimination in employment, Ms Ary would have to prove that:

1. her employer treated her less favourably than it treats or would have treated another employee not of her race in circumstances which are the same or not materially different: AD Act, s 7(1)(a) (differential treatment); and

2. the alleged conduct was on the ground of Ms Ary's race: AD Act, s 7(1)(a) (causation).

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Ms Ary must be compared with the treatment that would have been afforded to a person not of her race in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Ms Ary, the Tribunal would have to predict how her employer would have treated a hypothetical person in a comparable situation. It is not possible to make that prediction without addressing the second component of direct discrimination - causation.

1. At least one of the reasons for being treated in the way she was treated must be her race: AD Act, s 4A. Courts have interpreted the phrase "on the ground of" to mean whether at least one of the "real", "genuine " or "true" reasons for the treatment was the person's attribute, in this case, their race: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, 163.

1. In her complaint to the Anti-Discrimination Board, Ms Ary mentions at least two comments by other employees relating to her race. Those comments were that:

(1)   In December 2010 a colleague told another colleague that Ms Ary's background is Kurdish and that these people fought with Saddam Hussein decades ago. She is the only Kurdish employee so she assumes that the comment was about her.

(2)   A colleague asked her what her background was and another colleague of Iraqi Assyrian background said, "Tazra is a Kurd and the Kurdish people are another terrorist organisation, they have their own government which they don't deserve. Tazra's immigration here is another expansion of their evil empire."

1. Ms Ary was not able to identify how these comments related to her allegations of corruption or the other treatment about which she complains. When I asked Ms Ary why she thought her race was a factor in the way she had been treated, she said that discrimination was only a small part of the whole complaint. In her submission to the Tribunal she requested that the Tribunal give permission for her complaint to continue, investigate the alleged corruption and:

(1)   find her lost urine results which were collected by Liverpool Hospital in September 2011;

(2)   test the foods that made her sick; and

(3)   question 'Talbot' about why he or she wrote that Ms Ary had poisoned herself.

1. These requests, as well as the lack of any evidence connecting Ms Ary's allegations with her race, mean that the complaint is misconceived and lacking in substance. The Tribunal has no power to investigate allegations of corruption, to test foods for poison or to question witnesses unless those matters are relevant to an issue in dispute under the AD Act. As none of the allegations raised by Ms Ary have any connection with her race, I refuse permission for her complaint to go ahead.

Order

The application for leave for the complaint to proceed is refused.

**********

Decision last updated: 06 February 2013