Awad v Western Sydney Local Health District - [2013] NSWADT 287

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Awad v Western Sydney Local Health District [2013] NSWADT 287
Hearing dates: 19, 20 and 21 June 2013
Decision date: 13 December 2013
Jurisdiction: Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Ms J Schwager, non-judicial member
Ms J McClelland, non-judicial member
Decision:
1. The applicant's complaints of direct race discrimination are not substantiated.
2. The applicant's complaint of indirect race discrimination is substantiated.
3. The respondent is enjoined from continuing to impose the requirement of "demonstrated excellence in at least one clinical specialty practice" for appointment as a Grade 3 pharmacist.
4. The applicant's complaint of victimisation in relation to the Grade 3 Pharmacist Antimicrobial Stewardship Program position is not substantiated.
5. The applicant's complaints of victimisation in relation to his application for the re-advertised position of Grade 3 Pharmacist Clinical coordinator position are substantiated.
6. The respondent is ordered to pay the applicant $10,000 within 35 days of the date of these reasons.
7. The respondent's application for costs is refused.

Catchwords: ANTI-DISCRIMINATION - complaints of direct and indirect race discrimination in employment and victimisation - whether requirement of "demonstrated excellence" in at least one clinical specialty practice is an unreasonable requirement for promotion to Grade 3 pharmacist - whether head of department victimised applicant by convening selection panel when applicant had made a complaint of discrimination against him
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Cases Cited: Wollongong City Council v Bonella [2002] NSWADTAP 26
Sivananthan v Commissioner of Police, NSW Police Service NSWADT 44
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Waters v Public Transport Corporation (1991) 173 CLR 349
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Jones v Trad [2013] NSWCA 389
Category: Principal judgment
Parties: Sami Awad
Western Sydney Local Health District
Representation: Henry Davis York Lawyers (Respondent)
Applicant (in person)

File Number(s): 121080 121091

reasons for decision

Introduction

Mr Awad has worked as a pharmacist at Westmead Hospital for about 15 years. He alleges that his employer, Western Sydney Local Health District (WSLHD), through its employee Mr Ng, discriminated against him on the grounds of his race and then victimised him when he complained to the Anti-Discrimination Board.

Mr Awad was first employed at Westmead Hospital as a Grade 1 pharmacist in 1998. He was promoted to a Grade 2 position in 2002. Since then he has applied unsuccessfully for Grade 3 positions at Westmead and at other hospitals. He has a Bachelor of Pharmacy with first class Honours and a Masters of Public Health. He is a registered pharmacist with the Australian Health Practitioner Regulation Agency.

Mr Ng has been the Director of Pharmacy at Westmead since 1978. While he is not Mr Awad's direct supervisor, he has been the convenor of the selection panel for each of the Grade 3 pharmacy positions for which Mr Awad applied at Westmead in 2011.

Mr Awad complains about four incidents of direct race discrimination, one incident of direct and/or indirect race discrimination and three incidents of victimisation. In summary, he complains that Mr Ng:

(1) arranged for him to be paged to attend the weekly staff meeting on 24 February 2011 (direct race discrimination);

(2) questioned him when he stood up to leave the meeting (direct race discrimination);

(3) issued an instruction on 8 March 2011 that non-English languages were not to be spoken in the Department (direct race discrimination);

(4) questioned him repeatedly and aggressively when he was delivering a presentation on 15 March 2011 (direct race discrimination);

(5) did not offer him an interview for the Grade 3 Pharmacist Clinical Pharmacy Co-ordinator position, with a closing date of 31 March 2011 (direct and indirect race discrimination)

(6) culled his application for a Grade 3 Pharmacist Antimicrobial Stewardship Program position, with a closing date of August 2011 (victimisation);

(7) intended to be the convener of a panel in relation to his application for the re-advertised position of Grade 3 Pharmacist Clinical Coordinator position (with a closing date of August 2011) when he had a conflict of interest because Mr Awad had named him in a complaint of discrimination (victimisation); and

(8) accused him of misusing hospital property when he telephoned Human Resources to inquire about Mr Ng's decision to remain as convenor of the panel (victimisation).

We have dismissed Mr Awad's complaints of direct discrimination because he has not established a detriment or has not proved either the 'differential treatment' or the 'causation' part of the test for direct discrimination.

Mr Awad has substantiated that part of his complaint which alleged that WSLHD discriminated against him indirectly on the ground of his race by imposing a requirement that to be promoted to a Grade 3 pharmacist an applicant needed to have "demonstrated excellence in at least one clinical specialty practice." But because his application for the position which included that requirement was rejected on another, non-discriminatory, ground Mr Awad is not entitled to damages for that breach of the Anti-Discrimination Act 1977. WSLHD must not continue to impose that requirement as long as the existing circumstances remain.

We have dismissed one of Mr Awad's complaints of victimisation because he has not established a connection between the conduct about which he complains and the fact that he lodged a complaint of discrimination with Anti-Discrimination Board. We have found the other two complaints, substantiated and awarded Mr Awad damages of $10,000.

Direct discrimination on the ground of race

Mr Awad alleges that Mr Ng discriminated against him on the ground of his race in relation to four incidents all of which occurred in a three week period in February and March 2011.

It is unlawful to discriminate against a person on the ground of race in relation to particular aspects of employment. Section 8(2) of the AD Act provides that:

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, or

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

Direct discrimination is defined in s 7(1)(a) as follows:

(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

Elements of direct race discrimination

What has to be proved?

To substantiate a complaint of direct discrimination on the ground of race in breach of s 8(2), Mr Awad has to prove that:

(1) he is a member of a particular race as defined in s 4;

(2) the alleged conduct constitutes "any other detriment": s 8(2)(c);

(3) Mr Ng (as an employee of SWLHD) treated him less favourably than he treats or would have treated another employee not of his race in circumstances which are the same or not materially different: AD Act, s 7(1)(a) (the differential treatment requirement); and

(4) the alleged conduct was on the ground of Mr Awad's race: s 7(1)(a) (the causation requirement).

WSLHD accepts that if Mr Ng has breached the AD Act, then it is vicariously liable for his conduct: AD Act, s 53.

Mr Awad, who originally comes from Egypt, nominated his race as Middle Eastern. A term which is consistent with that term, but which more accurately describes Mr Awad's race, is "Arab." The WSLHD accepted that Mr Awad's race is Arab.

Detriment?

If a person is subjected to a detriment by another employee in the workplace, then that conduct will constitute "any other detriment" in s 8(2)(c). The word 'detriment' has its ordinary meaning of "loss, damage or injury": Wollongong City Council v Bonella [2002] NSWADTAP 26 at [67]-[69]. The detriment must be objectively determined and must be real and not trivial: Sivananthan v Commissioner of Police, NSW Police Service NSWADT 44 at [41].

Differential treatment

The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Awad must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to Mr Awad, the Tribunal would have to rely on a hypothetical person in a comparable situation. In those circumstances, the differential treatment and causation enquiries merge because the Tribunal could only reach the conclusion that WSLHD treated Mr Awad less favourably than a hypothetical person of another race would have been treated, by determining that race was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Causation

The second component of direct discrimination is 'causation'. There is no need to prove an intention to discriminate. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court has confirmed that the test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the "true basis", the "genuine basis" (Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144) for that treatment.

If an act is done for more than one reason it is sufficient if one of those reasons is the person's race, whether or not it is the dominant or a substantial reason: AD Act, s 4A.

Incident 1: being paged to attend weekly staff meeting

What happened?

The Department of Pharmacy holds staff meetings every Thursday morning at 8.30 am. In early 2011, at one of those meetings, Mr Ng told the staff that attendance was compulsory. Although attendance is compulsory Mr Ng said he does not consider non-attendance to be a particularly serious issue.

On the morning of 24 February 2011 Mr Awad says he went to his ward 'to attend an urgent clinical case'. At about 8.25 am Mr Ng arranged for his assistant, Ms Bisgolio, to page Mr Awad and tell him to attend the meeting. Mr Awad asked Ms Bisgolio whether any other pharmacists had been paged and she said 'No'. Mr Ng said that the reason he arranged for Mr Awad to be paged was that he had seen him at the hospital that morning but he had not come to the meeting. Mr Awad attended the meeting.

Mr Awad does not accept that Mr Ng saw him that morning because he did not provide details about when or where that happened. But we are satisfied that Mr Ng did see Mr Awad on the morning of the meeting and that he suspected that he was not going to attend the meeting. That triggered his decision to ask Ms Bisgolio to page him.

We are not satisfied that Mr Awad was attending an urgent clinical case on the morning of 24 February 2011. If that had been the case, he would have told Ms Bisgolio that he could not attend the meeting until he had finished that urgent business. Instead he went to the meeting.

Mr Ng gave evidence that 16 pharmacists did not attend the meeting. He said that if a pharmacist has a history of not attending meetings, or leaving meetings before they have finished and not returning, he speaks to the pharmacist or has them paged. But when giving oral evidence, Mr Ng conceded that, apart from this incident, he has never paged, or asked anyone else to page, a staff member to attend a weekly meeting.

Detriment?

Mr Ng does not consider that paging Mr Awad can be characterised as a 'detriment' as no-one else would have been aware that Mr Awad had been paged.

Although it is a relatively minor matter, we are satisfied that being paged to attend a staff meeting is not trivial and constitutes a real detriment to Mr Awad. It is not necessary for other people to know that he had been paged in order for that behaviour to be detrimental to Mr Awad. He was not intending to go to the meeting and he was directed to do so.

Differential treatment?

In this case the people with whom Mr Awad compares himself are the staff members from non-Arabic background who were also expected to attend the weekly meetings but who were not paged. From January 2011 to December 2011 at least three non-Arabic pharmacists attended fewer meetings than Mr Awad. In particular, Mr Awad compared the treatment he received with the way Mr Ng treated another employee, Elizabeth Tran, who is of non-Arabic background. According to Mr Awad, Ms Tran attended between two and three meetings in the 2011 calendar year whereas Mr Awad attended 23 or 24 meetings in that time. Mr Ng did not page her to attend any meetings.

Mr Ng agreed that he did not page Ms Tran or any other employee and said that is because he saw no reason to do so. In oral evidence he added that he was not concerned about Ms Tran's pattern of attendance as she may have been rostered on the late shift on that day.

When making the comparison between the way Mr Ng treated Mr Awad and the way he treated non-Arabic staff members, the circumstances must be the same or not materially different. According to Mr Ng, the circumstances of the 16 other people who did not attend the meeting were materially different from Mr Awad's circumstances. Those people all had a legitimate excuse for their absence. They were on leave, rostered to start on the late shift or required to perform urgent duties. Mr Awad did not offer any excuse to Ms Bisgolio or Mr Ng and he attended the meeting. There was no reliable evidence contradicting Mr Ng's assertions about the reasons for the non-attendance of the other staff and we accept that evidence.

The circumstances in relation to Mr Awad were materially different from the circumstances of the other 16 people who did not attend the meeting. They all had a legitimate excuse for non-attendance and he did not. Mr Awad has failed to establish the 'differential treatment:" element of the test for direct race discrimination. This part of his complaint is not substantiated. In case this conclusion is wrong, we will address the second element of direct race discrimination - causation.

Causation

There is no direct evidence that one of the reasons Mr Ng paged Mr Awad was his race. The only way Mr Awad can establish that connection is by identifying other primary facts which would allow the Tribunal to draw an inference to that effect. An inference must be logical, reasonable and establish a 'probable connection' with race. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70].

Mr Awad submitted that it can be inferred from the following facts that at least one reason for paging him was his race:

(1) Mr Ng has never paged or arranged for another person to page an employee to attend a weekly pharmacy meeting;

(2) at least three other non-Arabic pharmacists had attended fewer meetings than Mr Awad in a 12 month period; and

(3) Mr Ng did not know whether Mr Awad intended to attend the meeting or had a valid reason for not attending the meeting.

Although Mr Ng singled out Mr Awad by arranging for him to be paged to attend the meeting, there is a more probable and innocent explanation for that behaviour than Mr Awad's race. That explanation is that Mr Awad has a history of relatively poor attendance at the weekly meetings and Mr Ng suspected that he did not have a valid reason for not attending. When he saw him on the morning of the meeting, Mr Ng correctly assumed that he was not intending to attend the meeting. He did attend after he was paged and we have concluded that he had no legitimate reason for not attending. In those circumstances, we are not satisfied that one of the real or genuine reasons for paging Mr Awad was his race.

Incident 2: Being questioned when he left the meeting

What happened?

After the meeting had been in progress for about half an hour, Mr Awad stood up and walked towards the door. Mr Ng's version of the conversation is that he said, "Sami, are you going somewhere? "Mr Awad replied, "I am going to the toilet." Mr Ng then said, "OK". Mr Awad's version is that Mr Ng asked him in a loud voice where he was going and he replied that he was going to the toilet and then said "Is it OK?" Mr Ng denies shouting and denies that Mr Awad said, "Is it OK?" for him to go to the toilet. Mr Awad returned to the meeting after some minutes had passed.

There was no evidence from any other witnesses in relation to this incident. While we are not satisfied that Mr Ng shouted at Mr Awad, we accept that he spoke in a raised voice. We find that Mr Awad did ask Mr Ng whether it was "OK" to leave. He is more likely to accurately recollect what he said given that he was embarrassed by this incident.

Mr Ng accepted that he does not routinely ask other staff members where they are going when they leave a meeting.

Detriment?

We accept Mr Awad's evidence that he felt embarrassed and humiliated when Mr Ng asked him where he was going. While this is a relatively minor incident it constitutes loss, damage or injury to Mr Awad and is a detriment.

Differential treatment?

Mr Awad did not nominate a particular person as a comparator. Mr Ng accepted that he did not question other staff who left these meetings. Mr Ng treated Mr Awad less favourably than he would have treated other non-Arabic staff but the circumstances of that treatment must be the same or not materially different. We find that the circumstances were materially different because Mr Ng's uncontradicted evidence was that pharmacists regularly leave the meeting early when they are paged to attend urgent matters. If possible, the pharmacist returns after attending to the matter. On the other hand, Mr Awad left meetings on occasions and did not return.

The fact that Mr Awad sometimes left meetings and did not return is a materially different circumstance from the circumstances in which other staff members behaved. Mr Awad has failed to establish the 'differential treatment:" element of the test for direct race discrimination and this incident does not amount to a breach of the AD Act. In case this conclusion is wrong, we will address the second element of direct race discrimination - causation.

Causation

Mr Awad accepts that there is no direct evidence that race was a reason for Mr Ng questioning him. Any link to his race must be based on inferences from other facts. Mr Ng says that there is a more probable and innocent explanation namely that Mr Awad would often leave meetings early and not return and he needed to know whether he should pass on important information that related to his area of responsibility. Mr Awad submits that that is not a reasonable explanation given that the information could have been communicated by email.

We do not accept that Mr Ng's motivation for asking Mr Awad where he was going was so that he could pass on information to him. We find that Mr Ng questioned him because he sometimes walked out of meetings without explanation and did not return. Mr Ng's impression was that other pharmacists left meetings when they were paged to attend to urgent matters and then returned. There was no reliable evidence contradicting that impression and it is a more probable and innocent explanation for Mr Ng's question than Mr Awad's race. This part of the complaint is not substantiated.

Incident 3 - requirement to speak only English in the workplace

What happened?

Mr Awad alleges that on 8 March 2011, Mr Ng issued an instruction at the weekly pharmacist meeting that languages other than English were not to be used in the Department. Mr Awad said in his oral evidence that Mr Ng "prohibited" staff from speaking any language other than English in the workplace. He believes that instruction was aimed at Arabic employees.

According to Mr Awad, the majority of people working in the Department are of Asian descent and the only other languages spoken in the workplace are Asian and Middle Eastern languages. He says that Asian employees have spoken in their own languages to one another since he began working in the Department in 1998. More recently he has spoken in Arabic to assist newcomers to the Department who were of Middle Eastern background. According to Mr Awad, despite the direction, both Asian and Middle Eastern employees continue to speak in their own languages at work.

Mr Ng gave evidence that some time in 2011 staff members complained to him that several technicians of Indian background were speaking in their native language in front of them and that they felt uncomfortable. The employees asked Mr Ng to address this issue at a weekly meeting. He did so at a meeting on 8 March 2011 by asking all pharmacy staff to be considerate regarding the languages that they spoke in front of others and to be sensitive to their colleagues' feelings. He says he did not single out any particular person or language and did not instruct Mr Awad or anyone else not to speak in his or her own language at work. He denies directing staff to speak in English.

We accept Mr Ng's version of what he said at the meeting. We are not satisfied that he prohibited staff from speaking in any language other than English. We accept that people from Arabic and Asian backgrounds continue, on occasions, to speak in their native languages in the workplace. We find it more plausible that Mr Ng would have asked staff to be sensitive and considerate when speaking to colleagues in a language other than English. There is no dispute that Mr Ng addressed his instructions to everyone at the meeting and that employees from Asian as well as Arabic backgrounds were in attendance.

Detriment?

There is no detriment to Mr Awad in being present at a meeting where Mr Ng asked staff to be sensitive to others when speaking in a language other than English. While Mr Awad may have felt that he was being targeted, there was no objective basis for that impression. Since there was no detriment to Mr Awad, the complaint is not substantiated. But if that conclusion is wrong, we will go on to address the elements of direct race discrimination.

Differential treatment and causation?

Mr Awad submitted that given the high proportion of Asians in the workplace, the complaints to Mr Ng were not directed to people of Asian descent. In addition, despite the fact that the original complaint was about Indian technicians, Mr Ng did not raise this issue in a technicians' meeting. Consequently, Mr Ng must have been targeting Arabic employees like him.

We accept that this was Mr Awad's perception, but it was not based on Mr Ng's conduct. Because every person at the meeting, whether Asian or Arabic, was treated in the same way, there was no differential treatment. Similarly, Nr Awad's race cannot have been a reason for making the comment if it was not directed to him or to other Arabic employees.

Incident 4 - aggressive questioning of Mr Awad when giving a presentation

What happened?

Pharmacists are expected to give presentations to other staff as part of their job. The presentations are organised by the Department's Professional Development and Research Committee of which Mr Ng is a member. They are usually scheduled for about 45 minutes.

On 15 March 2011, Mr Awad gave a presentation on critical appraisal that he says was "part of his Diploma." He has a Masters in this subject and had given more than 10 lecturers about it. He says he is the most qualified and experienced pharmacist in the Department in that topic.

Mr Awad's version of events is that Mr Ng attended the meeting and questioned him persistently and aggressively. Despite asking him to stop so that Mr Awad could finish his presentation on time, Mr Ng continued questioning him. Mr Awad says his performance was adversely affected. According to Mr Awad he lost many marks because he had to restart after the questions and it took him 50 minutes instead of 10 minutes to finish the presentation.

Mr Ng recalls that during the first 5 or 10 minutes of the presentation he made a "small number" of comments and asked Mr Awad several questions. That is a practice he says he adopts with all pharmacists. He denies being aggressive, persistent or questioning Mr Awad differently from the way he questions any other pharmacist in a similar situation.

Mr Ng denies that Mr Awad asked him to stop asking questions or to stop making comments so that he could finish his presentation on time. He also denies that Mr Awad was delayed in completing his presentation or had to re-start the presentation. One hour was allocated and presentations normally last for about 45 minutes with time for questions. Mr Awad's presentation did not take 50 minutes, it took between 20 and 25 minutes.

Mr Ng says that because he does not directly supervise the Grade 1, 2 or 3 pharmacists he is never told whether a particular presentation is being assessed as part of any Masters course. He says he was not aware that Mr Awad was being assessed, who the assessor was or the mark that was given. We accept that evidence. Other than Mr Awad's assertion to the contrary, there was nothing to contradict Mr Ng's evidence on this point.

In general, we accept Mr Awad's evidence as to what happened during the presentation. Mr Ng questioned Mr Awad more intensely and for a longer period than, as a general rule, he questioned other pharmacists. We are also satisfied that he asked Mr Ng to stop questioning him but he continued to do so.

The reason for preferring Mr Awad's version is that he is likely to have a clearer recollection of the event given the effect that he says it had on him. In addition, Mr Ng's credibility in relation to this incident was adversely affected by the fact that he said that he does not organise the presentations but failed to mention in his statement that he is a member of the Professional Development and Research Committee that is responsible for those presentations. He also said that questioning is a practice he adopts with all pharmacists. Later he conceded that that was not the case.

Detriment?

Mr Awad says that the detriment he suffered was being penalised because he was unable to finish his presentation on time. He says he lost many marks because he had to re-start his presentation and because of the delay in completing the presentation. He also says that his morale has been affected by Mr Ng's conduct.

Other than Mr Awad's assertion, there is no evidence of any connection between Mr Ng's questioning and the mark Mr Awad was awarded for his presentation. Mr Awad asserts in his response to the WSLHD's written submissions that his morale was affected. He gave no evidence about that assertion. In those circumstances, we are not satisfied that Mr Awad suffered any detriment as a result of the questioning. That means that this part of his complaint is not substantiated. In case we are wrong, we will go on to consider the two elements of direct race discrimination.

Differential treatment?

Mr Ng agreed that when two other employees of non-Arabic background, Dr O'Sullivan and Ms Chan, gave presentations he did not question them. He says that was because he asked them to do the presentations and he knew about the topic. Ms Chan has expertise in a particular field and she presented on a topic under his instructions. When asked to outline the circumstances in which he would question a presenter, Mr Ng said that he would ask questions if there was a need to clarify something that had been discussed or if he had a contribution to make. Because he was not familiar with the topic on which Mr Awad was presenting, he needed to question him to clarify the points he was making.

While Mr Ng did treat Mr Awad differently from the way he treated other presenters from a non-Arabic background, the circumstances of that treatment were materially different. Mr Ng was not familiar with the topic and had not requested the presentation.

Causation?

As there is no direct evidence of race discrimination any finding to that effect must arise by way of inference. Mr Awad says that it can be inferred that race was a factor because Mr Ng also aggressively questioned another employee of Arabic background, Mr Mahmoud, when he was giving a presentation. Mr Mahmoud did not give evidence and we are not prepared to accept Mr Awad's second hand evidence on this point.

Secondly, Mr Awad says that the inference can be drawn because Mr Ng was motivated by antagonism towards him. That is said to be the case because Mr Ng described Mr Awad as an average presenter when, in fact, he provided ample evidence of his competence as a presenter.

Even if we accept that Mr Ng was antagonistic towards Mr Awad, that does not prove that one of the reasons for that antagonism was his race. We are not satisfied that one of the real or genuine reasons for the way Mr Ng questioned Mr Awad was his race. This aspect of Mr Awad's complaint is not substantiated.

Incident 5 - application for position of Clinical Pharmacy Co-ordinator - direct and indirect discrimination

Introduction

In March 2011 Mr Awad applied for the position of Clinical Pharmacy Co-ordinator but was not offered an interview. He alleges that WSLHD discriminated against him in breach of s 8(2)(b) by denying him access, or limiting his access, to opportunities for promotion. He says that the discrimination is both direct, as defined in s 7(1)(a), and indirect, as defined in s 7(1)(c). We will address the complaint of direct discrimination first.

What happened?

The position of Clinical Pharmacy Co-ordinator was advertised with a closing date of 31 March 2011. Mr Awad applied for the position but was not given an interview. Another applicant was interviewed but not recommended for appointment and the position was not filled.

The panel members were the convenor, Mr Ng, Ms Pietras, Acting Manager of the Post Acute Community Care Service at Westmead Hospital, and an external person, Mr Murney, Deputy Director of Pharmacy at Concord Hospital. One of the selection criteria for this position was "demonstrated excellent communication skills."

The comments made by the selection panel in relation to Mr Awad's application include that he did not meet the selection criteria and that, in particular, he did not meet the criterion of excellent written communication skills. When Mr Murney reviewed Mr Awad's application he noticed that Mr Ng and Ms Pietras had recommended that his application be culled. Nevertheless he says he independently reviewed the application and found that the standard of Mr Awad's written communication in his application was not satisfactory. When cross-examined Mr Murney said he thought Mr Awad's application had merit but he acceded to the views of Ms Pietras and Mr Ng.

When shown the application that the panel had assessed, Mr Awad denied that that was the application he had submitted for the position. Initially he said that the covering letter, the details of his referees and his resume were correct, but his responses to the selection criteria were not the responses that he submitted in hard copy. Mr Awad agrees that he uploaded the application and the resume for the position and attempted to upload the selection criteria but he does not know whether he successfully uploaded the selection criteria or not.

Similarly, in relation to the other two applications for positions in issue in these proceedings, (which are dealt with below) Mr Awad denies that the on-line version of his application was the version he later submitted in hard copy. He says that in each case he forwarded a hard copy of his responses to the selection criteria to Ms Tao by the due date. Ms Tao is the Clinical Pharmacy Manager who is responsible for general recruitment for Pharmacy at Westmead Hospital. She does not recall ever having received a hard copy application for any position from Mr Awad.

Mr Ng says he went on-line to download Mr Awad's application and that was the version that he and the other panel members considered.

We are not satisfied that Mr Awad sent a different hard copy version of his application to Ms Tao, or anyone else, for the following reasons:

(1) Despite the fact that Mr Awad says that when applying for Grade 3 positions at Westmead and elsewhere in 2011 and 2012 he has submitted hard copies of his applications, neither Ms Pietras nor Ms Macarthur can recall whether they ever received a hard copy application from him;

(2) Ms Tao does not recall ever having received a hard copy application for any position from Mr Awad;

(3) Mr Awad did not tender a copy of the application he says he provided in hard copy; and

(4) there is no other evidence to corroborate Mr Awad's assertion.

Even if Mr Awad had provided a hard copy, we could not assess the merits of that application because it is not in evidence.

Differential treatment and causation?

The treatment afforded to Mr Awad must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. If a non-Arabic person had submitted the online application that Mr Awad submitted, we are satisfied that the application would have been culled. Mr Awad displayed inferior written communication skills in the application and did not address the correct selection criteria. There is no basis for his claim that his application was culled on the ground of his race.

Alternative submission

Mr Awad's alternative submission is that if he did not address the correct selection criteria in his application, Mr Ng should have given him the opportunity to submit a fresh application responding to those criteria. The problem with that contention is that Mr Awad made it in his final written submissions. It would not be procedurally fair to make a finding about that assertion when WSLHD was not given an opportunity to adduce evidence about it at the hearing.

This part of Mr Awad's complaint is not substantiated. We turn now to consider whether WSLHD discriminated against Mr Awad indirectly in relation to this application.

Indirect race discrimination

Mr Awad also complains of indirect race discrimination in relation to the same application for the March 2011 Clinical Pharmacy Co-ordinator position. The unreasonable requirement with which he said he could not comply was "demonstrated excellence in at least one clinical specialty practice".

Indirect race discrimination is defined in s 7(1)(c) of the AD Act:

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator:

. . .

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

To substantiate a complaint of indirect race discrimination, Mr Awad has to prove that:

(1) WSLHD required him to comply with a requirement or condition; and

(2) he cannot comply with the requirement; and

(3) a substantially higher proportion of non-Arabic pharmacists are able to comply with that requirement than Arabic pharmacists; and

(4) the requirement is not reasonable having regard to the circumstances.

Imposition of a requirement or condition

The requirement that Mr Awad says was imposed was one of the criteria for selection:

Demonstrated excellence in at least one clinical specialty practice

As this was an essential requirement for the position, it is a requirement that WSLHD imposed on all potential applicants for that Grade 3 pharmacist position.

Can Mr Awad comply with the requirement?

Mr Awad interpreted the requirement to mean that he must hold, or have held, a specialist position as a Grade 1 or 2 Pharmacist in the Department. As he does not hold such a position, he cannot comply with the requirement. According to Mr Ng, being a specialist in pharmacy does not require any particular qualification or length of experience in a particular area but a specialist must demonstrate excellence in the practice of their relevant specialty. When questioned further, Mr Ng conceded that it would be "very difficult" for a rotating pharmacist, such as Mr Awad, to qualify for a Grade 3 position.

We are satisfied on the basis of all the evidence, including Mr Ng's concession that, in a practical sense, Mr Awad cannot comply with this requirement.

Proportion of Arabs and non-Arabs who can comply with the requirement

Mr Awad is required to identify the pool or group of people to whom the requirement is directed and then compare the proportion of Arabic people in that pool who can comply with the requirement with the proportion of non-Arabic people who can comply.

The pool is the group of people to whom the requirement is directed. In this case it is pharmacists who are interested in being promoted to the Grade 3 position.

There are approximately 12 specialist Grade 2 positions. It was not in dispute that no person of an Arabic background held such a specialist positions and four held non-specialist positions. As things stood when Mr Awad applied for the position, four pharmacists who have an Arabic background would not have been successful if they applied for the Grade 3 position because they were not in specialist positions.

On the basis of those figures, 100% of people at Westmead Hospital from a non-Arabic background could comply with the requirement while no-one from an Arabic background could comply.

WSLHD submitted that even if there is substantially fewer Arabic employees who can demonstrate excellence in at least one clinical speciality area, the reason that they are unable do so is not their race. But when applying the 'substantially higher proportion' part of the test for indirect discrimination, the reason that a person or group of people are unable to comply is irrelevant. The test is satisfied based on the proportions of those of one race who can comply compared with the proportions of people not of that race who can comply.

We are satisfied that a substantially higher proportion of non-Arabic pharmacists at Westmead are able to comply with the requirement of "demonstrated excellence in at least one clinical specialty practice" than Arabic pharmacists at Westmead.

Is the requirement not reasonable in all the circumstances?

The onus is on Mr Awad to prove that the requirement is "not reasonable having regard to the circumstances of the case." Reasonableness is a question of fact to be determined objectively by weighing all the relevant factors. Two of those factors are whether the imposition of the requirement is appropriate and adapted to the performance of the activity and whether the activity could be performed without imposing a discriminatory requirement. The fact that a condition has a logical and understandable basis does not necessarily mean that it is objectively reasonable: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 113 (Sackville J). The cost and consequences of not imposing the requirement is also relevant: Waters v Public Transport Corporation (1991) 173 CLR 349, 378 (Brennan J).

When the position was last advertised in 2008, the criteria was expressed differently. Mr Ng approved a change to the requirement in March 2011. The change was said to have come about because of a change in the relevant award.

The Health Employees' Pharmacists (State) Award effective from 12 November 2008 (with minor variations since that date) provides for pharmacists to be appointed at Grade 1 to Grade 7 levels. A Director of Pharmacy of a Group 1 hospital is a Grade 7 pharmacist. A Grade 3 pharmacist earns between $84,364-$86,704 a year. The award defines a Grade 3 pharmacist to mean:

. . .a Pharmacist who is responsible to the Director of Pharmacy or the Deputy Director of Pharmacy for the management and efficient performance of a specific unit or function of the hospital's pharmacy Department. Such appointment shall only be made where the hospital employs at least 5 Pharmacists or a Director of Pharmacy Group 5 Hospitals and Deputy Director of Pharmacy Group 3 Hospitals.

The award prescribes competency criteria for Grade 2 pharmacists but not for pharmacists above that grade. Grade 2 pharmacists need to demonstrate at least one of three essential competencies. The first competency applies if the person has postgraduate qualifications and three years experience. In that case, he or she only needs to have a minimum of 6 months experience in a relevant speciality. Relevant areas of specialty practice are defined to include: Liaison Pharmacy, Clinical Trials, Research and/or Project Co-ordinator, Information Technology, Oncology, Nutritional Support, Paediatrics and critical care.

The second essential competency applies if the person does not have postgraduate qualifications but has three years experience. In that case, he or she needs to have a minimum of 12 months experience in a relevant speciality before being appointed as a Grade 2 pharmacist. If the person cannot comply with either the first or the second essential competencies, he or she may still be appointed as a Grade 2 pharmacist if he or she is able to demonstrate "a higher level of performance in clinical pharmacy practices."

From the essential competencies for a Grade 2 position, it can be seen that experience in a relevant specialty is not an essential competency. A "higher level of performance in clinical pharmacy practices" is sufficient. A Grade 3 pharmacist is responsible for the management and efficient performance of a specific unit or function of the Hospital's Pharmacy Department. While it is logical that some level of competency in a relevant specialty be an essential requirement, "demonstrated excellence" in any relevant specialty (even if it is unrelated to the function or unit being managed) is not 'appropriate and adapted' to recruitment for Grade 3 pharmacists.

The effect of the requirement on Mr Awad, and other Arabic pharmacists in non-specialist positions, also needs to be considered. They may potentially be denied the opportunity to obtain a Grade 3 position because of the absence of an opportunity to obtain extensive experience in a specialty area. Given that "demonstrated excellence" in an unrelated specialty area is not appropriate and adapted to the recruitment of Grade 3 pharmacists, it is not reasonable taking into account the potential effect on Mr Awad and others. Competent pharmacists could be recruited to Grade 3 positions without imposing the "demonstrated excellence" requirement.

Incident 6 - application for position of Antimicrobial Stewardship Program

What happened?

On 2 June 2011 Mr Awad lodged a complaint of discrimination with the President of the Anti-Discrimination Board. He lodged further complaints by letters of 12 and 13 December 2011 and 9 February 2012. He alleged that his failure to be called for an interview for the position of Antimicrobial Stewardship Grade 3 in August 2011, amounts to victimisation for having lodged those complaints: AD Act, s 50.

The advertised position services four hospitals: Westmead, Blacktown, Mt Druitt and Auburn. According to Mr Ng, the only applicant who had any experience in Antimicrobial Stewardship was appointed to that position. Mr Awad was formally advised that he had been unsuccessful on 9 December 2011.

Victimisation

Section 50 of the AD Act states that:

(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.

In order to substantiate a complaint of victimisation, Mr Awad would have to prove that Mr Ng subjected him to a detriment 'on the ground' that he had lodged a complaint of discrimination against him.

Detriment?

The detriment to which Mr Awad said he was subjected was not being interviewed for the position and consequently being denied the opportunity to be appointed to that position. We are satisfied that that is a detriment within the meaning of that term in s 50.

Causal connection between complaint to ADB and being refused an interview

The decision to refuse Mr Awad an interview must be 'on the ground' that he lodged a complaint of discrimination. As with direct discrimination, that phrase means that the lodging of the complaint must have been at least one of the 'real', 'genuine' or 'true' reasons that Mr Awad was not interviewed: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 approved in Jones v Trad [2013] NSWCA 389 at [98].

On 2 June 2011, Mr Awad lodged a complaint with the President of the Anti-Discrimination Board. The complaint was about the way Mr Ng had treated him before and during staff meetings. By letters dated 12 and 13 December 2011 Mr Awad applied for his complaint to be amended to include the failure to be appointed to the position of Clinical Coordinator, a Grade 3 position. On 9 February 2012 Mr Awad complained of victimisation in relation to the recruitment process for the position of Antimicrobial pharmacist, Grade 3 and his interactions with Mr Ng on 15 December 2011, the day of the interview for that position.

Mr Ng denied that he knew about the 2 June complaint in August 2011. There is no direct evidence that conflicts with that assertion but Mr Awad says that it can be inferred that he knew about the complaint from two facts. First, in a written submission from WSLHD received on 23 November 2012, WSLHD stated that:

Only one panel member, Mr Ng, was aware of File 121080, Mr Awad's previous complaint.

Secondly, WSLHN wrote to the Anti-Discrimination Board on 20 July 2011 in response to one of Mr Awad's complaints against Mr Ng. That letter states that:

Mr Ng has provided Human Resources with responses to each allegation made by Mr Awad. The responses provided by Mr Ng are referred to herewith, in order to assist the LHN with responding to the allegations made by Mr Awad to the Anti-Discrimination Board (ADB) and are set out in the same format and sequence as Mr Awad's complaint letter.

The letter goes on to indicate Mr Ng's response to several of Mr Awad's complaints. We are satisfied on the basis of this evidence that Mr Ng knew about Mr Awad's complaints to the Anti-Discrimination Board when he made the decision to cull his application in August 2011.

The WSLHD submitted that the reason Mr Awad was not interviewed for to this position was that he did not meet the selection criteria of "demonstrated excellent verbal and written communication skills" and that his application did not address the other criteria in the advertised position. The four panel members were Mr Ng, Ms Margaret Macarthur, Director of Pharmacy at Blacktown and Mt Druitt Hospitals, Mr Matthew O'Sullivan, Staff Specialist in Infectious Diseases and Microbiology at Westmead Hospital, and Ms Kok. The unanimous view of the selection committee was that Mr Awad's application should be culled.

The panel's comments on his application (including any spelling and grammatical errors) were as follows:

Kingsley Ng: poor responses to selection criteria. Poor written communication skills, demonstrated by candidates appication. Covering letter and detached information appears to have been reproduced from application for another position without any modification - not even the title of the position. Not recommended for interview.

Margaret Macarthur; applicant did not address any of selection criteria in a satisfactory manner showing poor communication skills, and not of standard for a grade 3 position; the letter of application appeared to be for another position did not directly refer to the criteria nor demonstrate the experience required for an AMS senior pharmacist. Not recommendedd for interview.

Matthew O'Sullivan: poor responses to selection criteria. Has demonstrated poor written communication skills based on his application which is full of spelling and grammatical errors. The cover letter and detached application information appears to have been recycled from an application for another position without any modifications. This candidate is not suitable for interview.

Jen Kok: does not meet communication criteria for selection.

Ms Kok recalls that there were about five applications including one from Mr Awad. She says Mr Awad's application contained numerous grammatical and spelling errors. She considered that his poorly presented application demonstrated that he was not particularly interested in anti-microbial stewardship.

Mr O'Sullivan says that he recalls that Mr Awad's application was, by far, the least impressive. His poor written communication skills together with the fact that his application failed to refer to the correct position title meant that he was not considered for interview. Ms Macarthur expressed similar views. She says she was not influenced by Mr Ng's view when she decided to cull Mr Awad's application.

Mr Awad says he believes he satisfied the selection criteria and has broader experience and qualifications than the person nominated for the position. He acknowledged that his application contained spelling and grammatical errors and said that he is not perfect. Mr Awad agreed that he does not have "excellent" written communication skills but maintained that his skills were good enough to perform the duties of this position. Mr Awad said that because he was in hospital between 1 - 13 August 2011 he did not have a great deal of time to complete the application.

He also pointed to other occasions when a panel member accepted that he had excellent written communication skills. For example Mr Murney had written in 2005 that Mr Awad had excellent communication skills in relation to his application for another position. Mr Murney explained that he took a 'liberal view' in that case. Mr Awad also relied on applications from other successful applicants for Grade 3 position where he says the communication skills exhibited in those applications was not excellent.

In his application (including any spelling and grammatical errors) Mr Awad wrote,

"I have a high lever (sic) of communication both verbal and written. I have gained over my long service Westmead hospital."

He also said that he had:

"a good understanding of the practice of antimicrobial stewardship. It is systematic (sic) approachto optimising the use of antimicrobial agents. This program would improve the appropriateness (sic) use of the antimicrobials, save the cost, and reduce the emerging of resistance."

In relation to the criteria of demonstrated excellence in clinical pharmacy practice, particularly high level of knowledge in antimicrobial therapy, Mr Awad wrote:

I have more than 21 years of experience. I had been working as clinical pharmacist for almost 15 years. I have experience in different areas such as renal, cardiolog, ICU, emergency, urology, geriatric and Gastro. I have developed my high leverl of knowledge via studying of graduate diploma of clinical pharmacist. I have high level of knowledge of pharmacokinetics, economic of antimicrobial therapy.

On the basis of all the evidence, we are not satisfied that one of the reasons Mr Awad's application was culled was that he had lodged a complaint with the Anti-Discrimination Board in June 2011. Firstly, and most significantly, a similar application by Mr Awad demonstrating relatively poor written communication skills and addressing the wrong selection criteria had been culled in March 2011 before Mr Awad had complained to the Anti-Discrimination Board. Secondly, there is a more plausible reason for the application being culled, namely his poor written communication skills and the fact that he did not address the correct selection criteria. While Mr Awad attempted to demonstrate that other successful applicants did not have excellent communication skills and that selectors had previously regarded him as having excellent communication skills, we are satisfied, in accordance with Mr O'Sullivan's evidence, that Mr Awad's application was, by far, the least impressive.

As with the application for Clinical Pharmacy Co-ordinator, we do not accept that Mr Awad submitted a different hard copy of this application. Mr Awad did not provide a copy of that application and Ms Tao denies having received it.

Mr Awad's complaint of victimisation in relation to his application for a Grade 3 Pharmacist Antimicrobial Stewardship Program position is not substantiated.

Incident 7 -application for re-advertised position of Clinical Coordinator

Introduction

The Clinical Pharmacy Co-ordinator position that was not filled in March was readvertised in August 2011. Mr Awad applied for this position and was advised to attend an interview on 15 December 2011 at 2.30 pm. Mr Awad says he went to the interview but, after speaking to Mr Ng, he understood that Mr Ng would be the only person interviewing him. He did not consider that to be fair because he had complained about Mr Ng to the Anti-Discrimination Board. Mr Awad refused to participate in the interview.

This is a complaint of victimisation. We accept that Mr Awad lodged complaints of discrimination with the ADB on 2 June 2011, 12 December and 13 December 2011. While Mr Ng would not have known of the later applications by the date of the interview on 15 December, he admitted when questioned during the hearing that he did know about the April complaint by December.

Detriment?

At various times, Mr Awad identified the 'detriment' he suffered in at least two different ways. In his Points of Claim, he said the detriment was Mr Ng refusing to accommodate his request to be interviewed by people not involved in the anti-discrimination proceedings. In his statement dated 31 October 2012, and in his written submissions dated 12 July 2013, Mr Awad identified the detriment as being unsuccessful in his promotion to a Grade 3 position.

If not getting the job is the detriment on which Mr Awad relies, the complaint cannot be substantiated. There is no causal connection between Mr Awad lodging a complaint of discrimination in April 2011 and being unsuccessful in his application for a Grade 3 position in December. At least two other factors intervened to break any possible link between those two events.

Firstly, Mr Awad did not participate in the interview so he did not give himself the opportunity to be appointed to the position. Secondly, even if he had participated, he would not necessarily have been offered the job. There was at least one other candidate who was interviewed.

In his written submissions dated 26 July 2013, in response to the respondent's written submissions, Mr Awad identified the "detriment" as being assessed by Mr Ng, who a reasonable person would apprehend was biased. Put another way, Mr Awad is saying that the detriment was being assessed by Mr Ng when he had a conflict of interest. This is a variation of the detriment he identified in his Points of Claim. We accept that this is the detriment on which Mr Awad now relies. That characterisation requires us to make a preliminary finding of fact as to whether a reasonable person would apprehend that Mr Ng was biased.

One of NSW Health's Policy Directive deals with "Recruitment and Selection of Staff of the NSW Health Service". That policy document contains the following requirement:

All panel members are required to declare any real or potential conflict of interest as soon as they become aware of it eg close personal relationship or previous workplace conflict with an applicant.

Under the heading "Selection panel composition" minimum requirements are set out including:

Any conflicts of interest must be declared and managed/discharged as necessary and documented. Options may include:

Adding an additional panel member as a safeguard eg two independents

Limiting the contribution of the panel member eg contribute to discussion only as a subject expert, but not take part in decision-making, or

Replacing the panel member

The policy describes the role of the convenor as being responsible for ensuring that:

All relevant NSW health standards are met during the selection process, as specified in this and any other relevant Module, including establishing an appropriate selection panel, ensuring the relevant checking and vetting occurs and resolving any conflicts of interest appropriately.

We are satisfied that Mr Ng had a "previous workplace conflict" with Mr Awad. Those conflicts include the allegations of direct discrimination in relation to events in March and April 2011, which were the subject of Mr Awad's first complaint to the Anti-Discrimination Board. In those circumstances, we find that a reasonable person would apprehend that Mr Ng had a conflict of interest. In accordance with the policy, he should not have participated in the selection process. We also find that, in those circumstances, his intention to be the convenor of the panel constitutes a "detriment" within the meaning of that term in s 50 of the AD Act.

Causal connection between complaint to ADB and Mr Ng's decision to be the convenor of the panel

To substantiate his complaint of victimisation, Mr Awad must establish that Mr Ng's decision to be the convenor of the panel was 'on the ground' that Mr Awad had lodged a complaint of discrimination.

Mr Ng gave evidence that he would often be appointed as the convenor of the selection panels for roles within the Department of Pharmacy as he is head of the Department. He did not say who appoints him to that position.

On 14 December 2011, Mr Awad wrote to Mr Ng requesting the names and contact details of the convenor for previous Grade 3 positions for which he had applied and for the position for which interviews were to be held the following day. Due to the very tight deadline and his workload, Mr Ng says that he was not able to respond to that letter. In any case he says it would be unusual to tell an applicant the names of the panel members prior to the interview. Normally an applicant would only be aware of the name of the convenor.

Mr Ng's understanding of what is required is not correct. The Recruitment and Selection Policy requires that applicants who are offered an interview must be advised of the names and titles of the selection panel. Mr Ng failed to provide Mr Awad with that information.

According to Mr Ng, Mr Awad was on notice that he was going to be a member of the panel because he signed the letter asking him to attend the interview. He said it was standard practice for the convenor to send the letters inviting applicants to attend an interview. For that reason Mr Awad should have been aware that he was sitting on the selection panel prior to attending the interview. We do not accept that proposition. While Mr Awad may have suspected that Mr Ng was to be the convenor he was never told that that was to be the case. Even if he did know, that fact is irrelevant to the determination of the question of causation.

There was conflicting evidence as to the reason Mr Awad decided not to participate in the interview. Mr Awad said that it was because Mr Ng was the convenor of the panel. Mr Ng said Mr Awad did not participate because he did not want to prepare a memorandum that he asked him to prepare when he arrived for the interview. The panel had decided that it would provide applicants with a topic half an hour before the interview and ask them to complete a written memorandum on that topic. Mr Ng had not told Mr Awad in advance that that would be a requirement but he told him about it when he came for the interview. According to Mr Ng, Mr Awad refused to complete the task and as a result could not participate in the interview.

Mr Ng says that when he saw Mr Awad arrive for the interview, the following conversation took place:

Sami, one part of the interview requirements is for you to complete a memorandum. Here is your topic. Here is a pen and paper. You have half an hour to complete the memorandum.

What are you trying to do to me?

Nothing. This is just a standard procedure for interviews.

I am not going to do it. I want to talk to the panel members.

You could talk to the panel members when you go into the interview.

As Mr Awad was walking out of the interview room he says Mr Ng called out to him saying , "Wait. Let me contact Human Resources."

Mr Awad denies this version of the conversation. He says he told Mr Ng that he did not feel comfortable being interviewed by him "in the context of the impending discrimination suit". He asked Mr Ng why he was doing this to him. He replied, "Because you are taking me to court." Mr Awad said, "What court? Do you mean the ADB?". Mr Ng said, "Yes". Mr Ng denies this version of the conversation and, in particular, denies that he said anything about taking Mr Awad to court.

Mr Awad agreed that he had not mentioned the "taking me to court" allegation in his complaint to the ADB on 8 February 2012 even though he was complaining about this incident. Again, when Mr Awad responded to the WSLHD's letter to the ADB, Mr Awad did not mention any comment about being taken to court. It was not until the ADB wrote to Mr Awad on 12 March 2012 asking, "Why do you consider that it was victimisation? Please tell us why you think the specific events alleged took place as a result of you lodging your complaint on 2 June 2011 (with the respondent being notified later)" Mr Awad's response to this letter was:

In the room allocated for the interview, when I saw Mr Ng I got very stressed and I asked him why are you doing this to me (inappropriate recruitment procedure) he replied because you are taking me to court (referring to the complaint at the Board and the consequence (sic) referral to the tribunal.

We are not satisfied that Mr Ng made the comment "because you are taking me to court". If he had said that, it is likely that Mr Awad would have mentioned it in his complaint. He did not mention it until specifically asked by the ADB why he thought that Mr Ng was victimising him.

Mr Awad then asked if he could talk to any of the other panel members. Mr Ng then left to telephone a person from Human Resources. He says he made that call to ask what the proper procedure would be if Mr Awad refused to complete the memorandum. He says the advice he was given was that if Mr Awad refused to complete the memorandum he would automatically be disqualified from continuing with his application.

According to Mr Awad, during the 10 or 15 minutes that Mr Ng was absent, no other panel member appeared. Mr Awad left the room to ask the reason for the delay. Mr Awad said he called to a lady who was passing by (Ms Pietras) and told her that he was refusing to attend the interview. She replied that if he did not attend he would be withdrawn from the process.

Mr Awad then said that Mr Ng returned. Mr Awad told him that he did not believe that he should be on the panel. Mr Ng denies that Mr Awad said that he should not be part of the panel, but we are satisfied that Mr Awad did make that comment. That was his main concern. That is why he had written to Mr Ng to clarify the situation. Mr Awad then asked Mr Ng if he could talk to Human Resources or the General Manger. Mr Ng refused. Mr Awad asked the woman he had spoken to previously what her name and position was. Mr Ng instructed the woman not to tell Mr Awad her name. There is no dispute as to that version of events.

Mr Awad then asked Mr Ng why he was "pushing" him and then told him he would not be participating in the interview. He denies refusing to participate in the interview process and says he applied for the position and wrote the memo that had been requested. We are satisfied that he has confused the request to write the memo with the earlier request to prepare an oral presentation.

We accept Mr Awad's evidence that at least one of the reasons he refused to participate in the interview was that he did not want to be interviewed by Mr Ng and that he understood, incorrectly as it turns out, that Mr Ng was to be the only interviewer. He had complained about Mr Ng to the Anti-Discrimination Board and had written to him the day before asking who would be on the panel. Mr Awad perceived that Mr Ng had a conflict of interest and would not be able to make an unbiased decision. Mr Ng says he did not consider that he had a real or perceived conflict and thought he was in a position to be objective. We do not accept that assertion. As an experienced senior manager, Mr Ng must have known that he had at least a perceived or potential conflict of interest.

In our view, to comply with the policy on Recruitment and Selection relating to conflict of interest, Mr Ng should not have been the convenor of the panel when Mr Awad was an applicant. He had, at least, a potential or perceived conflict of interest given the fact that Mr Awad had complained about his conduct to the Anti-Discrimination Board.

We are satisfied that at least one of the real or genuine reasons that Mr Ng did not disqualify himself from being the convenor of the panel was that Mr Awad had complained about him. We have not found that Mr Ng uttered the 'taking me to court' statement, but that inference arises from other facts. Mr Ng is an experienced senior manger with extensive experience on selection panels. He must have known that he had at least a perceived conflict of interest. It was not merely poor judgement on his part. He knew that Mr Awad was attempting to find out whether he was on the panel but he did not tell him directly.

This part of Mr Awad's complaint of victimisation is substantiated.

Incident 8 - Mr Ng accused Mr Awad of misusing hospital property

What happened?

After refusing to take part in the interview Mr Awad went to the Pharmacy Department and telephoned Human Resources to ask whether it was acceptable for Mr Ng to convene an interview without any panel members and with the "current issues". He also wanted to know to whom Mr Ng had spoken when he telephoned Human Resources after speaking to Mr Awad outside the interview room. Mr Awad says he was transferred to several people but no one could give him an answer.

Mr Awad says that Mr Ng then stepped into the pharmacy while he was on the phone and said, "You're using hospital property for a private purpose." Mr Awad replied that it was an internal call, but hung up because he was agitated and concerned that he would be summarily dismissed. Mr Ng's version is that he had previously told staff not to use that phone for private purposes and to keep it free as much as possible. He said to Mr Awad, "Is that for a private purpose?" He does not recall Mr Awad's response to that question.

We consider it more plausible that, in accordance with Mr Awad's evidence, Mr Ng made a statement rather than asking a question about Mr Awad's use of the phone. Even if he asked a question we are satisfied that Mr Ng was challenging Mr Awad's use of the phone and inferring that he was acting against hospital policy.

This is another complaint of victimisation for having lodged a complaint against Mr Ng. The detriment was said to be Mr Ng's allegation that he was using the phone for a private purpose when hospital policy prevents staff from doing so unless there is an emergency. Mr Awad said that he could have been disciplined for breaching hospital policy. We are satisfied that, in the context of the recent events, being challenged by Mr Ng was a detriment.

Mr Awad's primary submission was that Mr Ng accused him because he had lodged a complaint of discrimination against him. That inference was said to arise either because Mr Ng did not know to whom Mr Awad was speaking or what the phone call was about or because Mr Ng suspected that he was telephoning Human Resources. We accept that, either way, Mr Ng was annoyed that Mr Awad had challenged his decision to convene the panel.

This incident is closely connected with Incident 7 as it happened shortly after Mr Awad had refused to participate in the interview. For similar reasons to those we have already given, we are satisfied that at least one of the real or genuine reasons that Mr Ng challenged Mr Awad when he was on the phone was that Mr Awad had complained about him. He did not want him to contact Human Resources to inquire as to whether there was a conflict of interest. He was attempting to intimidate Mr Awad because he had complained about him.

This part of Mr Awad's complaint of victimisation is substantiated.

Remedies

The law

Mr Awad has substantiated some parts of his complaint and is entitled to any appropriate remedy. Pursuant to s 108(2) of the AD Act:

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

Incident 5 - indirect discrimination

Because the reason for Mr Awad not being interviewed for the position of Clinical Pharmacy Co-ordinator was his non-compliance with other criteria, he is not entitled to damages for indirect discrimination. But WSLHD should be prevented from imposing the requirement unlawfully in future: AD Act, s 108(b). As long as the situation remains that a substantially higher proportion of Arabic than non-Arabic Grade 1 and 2 pharmacists cannot comply with this requirement, it should not be imposed. Either the requirement should be revised so that Mr Awad and others in his situation can comply or it must be revised so that, notwithstanding their inability to comply, it is reasonable in all the circumstances. It is a matter for WSLHD as to how this is done but, as we have said, "demonstrated excellence in at least one clinical specialty practice" is not a requirement that it appropriate and adapted to the recruitment of Grade 3 pharmacists.

Incidents 6 & 7

The detriment suffered by Mr Awad in relation to these incidents was being assessed for interview by Mr Ng when he had an actual or perceived conflict of interest and being accused of breaching hospital policy in relation to the use of the phone.

Mr Awad submitted that damages should be calculated on the basis of lost income from the date he would have taken up the position. But there is no guarantee that, if interviewed, Mr Awad would have been promoted. There was at least one other applicant for the position who was selected for interview. Mr Awad's damages can only be for non-economic loss, that is for 'pain and suffering' or for related medical expenses for missing the opportunity to be considered for the position.

The loss or damage must have been suffered "by reason of" SWLHD's conduct. The principal cause of Mr Awad's distress was the fact that Mr Ng was the convenor of the panel. Mr Awad misunderstood certain aspects of the procedure. Firstly, he mistakenly thought that Mr Ng was to be the only person interviewing him. Secondly, he confused the oral presentation he had been asked to prepare with the writing of a memorandum - a task he was asked to complete on the day. But despite Mr Awad's confusion, he was distressed mainly because of Mr Ng's involvement. He said he was agitated and had to see his doctor. No medical evidence was provided.

We accept that Mr Awad was extremely agitated and upset as a result of this incident. We assess his damages for pain and suffering as a result of these incidents at $10,000.

Mr Awad also claimed $900 for the cost of medical expenses but did not provide any evidence that he had incurred that expense. We decline to award him any damages for medical expenses.

Mr Awad sought an apology from SWLHD as it is vicariously liable for Mr Ng's conduct. Given that the conduct was Mr Ng's, we see no point in ordering his employer to apologise.

Mr Awad's final submission was that the Tribunal should restrain SWLHD from involving Mr Ng in any selection process for a position for which he may apply in the future. We are not prepared to place such an absolute and indefinite restraint on Mr Ng's involvement. While he will risk victimising Mr Awad again if he chooses to sit on a selection panel in the short term, it may be that, with time, any potential conflict of interest will dissipate. Mr Ng needs to determine the extent of his future involvement based on the continued existence of any perceived or actual conflict of interest.

Costs

WSLHD applied for Mr Awad to pay its costs. The general rule is that each party pays its own costs.

Section 110 of the AD Act gives the Tribunal power to award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint. Section 88 provides that:

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section,

"costs" includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

The basis on which WSLHD applied for costs was that Mr Awad's complaints have "no tenable basis in fact or in law" and that his conduct of the proceedings was vexatious. Those submissions were made on the basis of the following assertions:

(1) there is no evidence that Mr Awad was directly or indirectly discriminated against on the grounds of his race;

(2) there are no grounds for any inference that Mr Awad was directly or indirectly discriminated against on the grounds of his race; and

(3) the evidence demonstrates that Mr Awad was not treated differently from how a non-Arabic person would have been treated in the same or similar circumstances.

Contrary to WSLHD's submissions, we have found three of Mr Awad's complaints to be substantiated. There was no basis for WSLHD's submission that Mr Awad's complaints had no tenable basis in fact or law or that they were vexatious.

WSLHD's application for costs is refused.

Orders

1. The applicant's complaints of direct race discrimination are not substantiated.

2. The applicant's complaint of indirect race discrimination is substantiated.

3. The respondent is enjoined from continuing to impose the requirement of "demonstrated excellence in at least one clinical specialty practice" for appointment as a Grade 3 pharmacist.

4. The applicant's complaint of victimisation in relation to the Grade 3 Pharmacist Antimicrobial Stewardship Program position is not substantiated.

5. The applicant's complaints of victimisation in relation to his application for the re-advertised position of Grade 3 Pharmacist Clinical coordinator position are substantiated.

6. The respondent is ordered to pay the applicant $10,000 within 35 days of the date of these reasons.

7. The respondent's application for costs is refused.

**********

Decision last updated: 13 December 2013

Medium Neutral Citation:	Awad v Western Sydney Local Health District [2013] NSWADT 287
Hearing dates:	19, 20 and 21 June 2013
Decision date:	13 December 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President Ms J Schwager, non-judicial member Ms J McClelland, non-judicial member
Decision:	1. The applicant's complaints of direct race discrimination are not substantiated. 2. The applicant's complaint of indirect race discrimination is substantiated. 3. The respondent is enjoined from continuing to impose the requirement of "demonstrated excellence in at least one clinical specialty practice" for appointment as a Grade 3 pharmacist. 4. The applicant's complaint of victimisation in relation to the Grade 3 Pharmacist Antimicrobial Stewardship Program position is not substantiated. 5. The applicant's complaints of victimisation in relation to his application for the re-advertised position of Grade 3 Pharmacist Clinical coordinator position are substantiated. 6. The respondent is ordered to pay the applicant $10,000 within 35 days of the date of these reasons. 7. The respondent's application for costs is refused.
Catchwords:	ANTI-DISCRIMINATION - complaints of direct and indirect race discrimination in employment and victimisation - whether requirement of "demonstrated excellence" in at least one clinical specialty practice is an unreasonable requirement for promotion to Grade 3 pharmacist - whether head of department victimised applicant by convening selection panel when applicant had made a complaint of discrimination against him
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Wollongong City Council v Bonella [2002] NSWADTAP 26 Sivananthan v Commissioner of Police, NSW Police Service NSWADT 44 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Waters v Public Transport Corporation (1991) 173 CLR 349 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Jones v Trad [2013] NSWCA 389
Category:	Principal judgment
Parties:	Sami Awad Western Sydney Local Health District
Representation:	Henry Davis York Lawyers (Respondent) Applicant (in person)
File Number(s):	121080 121091