BAHGAT AND SERENDIPITY PTY LTD T/AS ADVANCED PERSONNEL MANAGEMENT

[2006] ACTDT 2

AUSTRALIAN CAPITAL TERRITORY

DISCRIMINATION TRIBUNAL

CITATION:BAHGAT AND SERENDIPITY PTY LTD T/AS ADVANCED PERSONNEL MANAGEMENT [2006] ACTDT 2 (23 OCTOBER 2006)

DT05/526

Catchwords:  Discrimination in the provision of services – application to strike out complaint – no causative link established between relevant attribute and unfavourable treatment established.

Discrimination Act 1991, ss 10, 20, 73, 87, 89

Safety Rehabilitation and Compensation Act 1988 (Cth), ss 34D, 37

Clean Ocean Foundation v Environment Protection Authority (2003) 20 VAR 227

Legal Aid Commissioner (ACT) & Ors v Grundy [1999] ACTSC 318

Lucy Cooper and ACT Housing (DT03/18 dated 22 June 2004)

State Electricity Commission v Rabel & Ors [1997] EOC 92/875

Tribunal:Mr M H Peedom, Deputy President

Date:23 October 2006

AUSTRALIAN CAPITAL TERRITORY            )

DISCRIMINATION TRIBUNAL                   )      NO:     DT05/526

RE:    AHMED BAHGAT

Complainant

AND:   SERENDIPITY PTY LTD

T/AS ADVANCED

PERSONNEL

MANAGEMENT

Respondent

ORDER

Tribunal             :      Mr M H Peedom, Deputy President

Date                 :      23 October 2006

Order                :

Pursuant to section 89 of the Discrimination Act 1991, the Tribunal orders that the complaint be struck out.

…………………………….

Deputy President

AUSTRALIAN CAPITAL TERRITORY            )

DISCRIMINATION TRIBUNAL                   )      NO:     DT05/526

RE:    AHMED BAHGAT

Complainant

AND:   SERENDIPITY PTY LTD

T/AS ADVANCED

PERSONNEL

MANAGEMENT

Respondent

REASONS

23 October 2006  Mr M H Peedom, Deputy President

The strike out application

This is an application made by the respondent, pursuant to section 89 of the Discrimination Act 1991 (“the Discrimination Act”), to strike out the complainant’s complaint of unlawful discrimination on the basis that it is vexatious, misconceived and lacking in substance.

Background

2. Details of the complainant’s complaint and the factual background to it are set out in documents provided to the Discrimination Commissioner in the course of her investigation of the complaint pursuant to section 73 of the Discrimination Act and documents submitted by the complainant and on behalf of the respondent to the Tribunal pursuant to directions given by the Tribunal on 2 December 2005 and 30 June 2006 and which were made exhibits in the proceedings at the hearing of the strike out application on 18 October 2006.

3.  The more pertinent facts of the case are as follows.

4.  The complainant was, at all times, a youth worker employed by the Department of Disability, Housing and Community Services (“the department”) at Quamby Detention Centre (“the Centre”).

5.  On 13 November 2004 he suffered an injury at work during an incident which involved him providing assistance to his supervisor, Mr J Wesney, to restrain an inmate at the Centre.  He submitted a claim for worker’s compensation in which he attributed responsibility for his injury to Mr Wesney.  He alleges that at a meeting in January 2005 attended by Mr C Shore, the Centre manager, Ms M Lam, an injury prevention manager, Mr T Day, operations manager at the Centre and Ms N Doolan, an officer of the respondent, to discuss his graduated return to work, Mr Shore accused him of upsetting his supervisor and made sarcastic comments about medical evidence submitted by him in support of his worker’s compensation claim.

6.  On 11 March 2005 he submitted a medical certificate stating that he was fit to return to his pre-injury night shift duties for a period of 30 days and then to have his condition reviewed.  Ms Doolan attended the visit with the complainant to the doctor who issued the certificate.  Despite the issue of the medical certificate, the complainant was not requested to resume his duties at work.  He alleges that he suffered psychological distress as a result.

7.  The complainant’s psychologist was advised by his injury case manager that it was not appropriate for the complainant to return to work because of the low number of supervisors on night shift.  A meeting was arranged for 16 March 2005 to discuss the matter but was cancelled on 14 March 2005 by Ms Lam, apparently because Ms Lamb understood that the complainant was reluctant to attend any further meeting at which Mr shore was present.

8.  On 14 March 2005 Ms Doolan advised the complainant that his file had been temporarily closed because the respondent could not force any immediate resolution of the conflict between the complainant and Mr Shore.

9.  The complainant was issued with a further medical certificate on 23 March 2005 which stated that he was fit to return to his pre-injury work.

10.  On 12 April 2005 the complainant attended a meeting with Mr Shore, Mr Wesney, an operations manager, a shift co-ordinator and team leader from the Centre and Ms Butler and Ms S Arora, representatives of the respondent.  Ms Butler stated that the purpose of the meeting was to discuss the complainant’s return to his pre-injury duties in 2 weeks’ time and to be monitored by the respondent.  The complainant alleges that Mr Shore said that he could not return to work unless he was sure that the complainant had no grudges against him and other staff at the Centre.  He alleges that he felt bullied and intimidated by Mr Shore and left the meeting.  He alleges that he was threatened with disciplinary action unless he applied for leave.  After his union became involved in the matter, he was supplied with a roster for him to return to work. 

11.  A report provided by the respondent to Ms Lam recorded that the complainant’s case was closed on 10 May 2005 at the request of Ms Lam.

12.  The complainant alleges that he suffered psychological injury and loss of pay because of the conduct of the respondent and the department, against which he has also made a complaint of discrimination.

13.  The complainant alleges that he was treated unfavourably by the temporary closure of his file on 14 March 2005 and by the failure of the representatives of the respondent, who were present at the meetings attended by him with them and officers of the department and otherwise, to take more effective action to prevent the discussions being distracted by issues unrelated to his rehabilitation and by otherwise neglecting to take appropriate measures to ensure his timely return to work.

Reasons for decision

14.  In order for the complaint to be substantiated there would need to be some evidence favourable to the complainant’s contentions which, taken at their highest in favour of those contentions, would render them seriously arguable: Legal Aid Commissioner (ACT) & Ors v Grundy [1999] ACTSC 318. In determining whether a complaint should be struck out pursuant to section 89 of the Act, the Tribunal ordinarily accepts that it should be assumed that the factual allegations relied on by the complainant are true and such inferences in favour of the complainant as are open should be drawn. If, however, it is clear beyond doubt that the complainant has no arguable case which should be allowed to be resolved at a full hearing, a complaint may be dismissed as lacking in substance (see State Electricity Commission v Rabel & Ors [1997] EOC 92/875).

15.  The power to dismiss a claim as without substance is required to be exercised with considerable caution (see Clean Ocean Foundation v Environment Protection Authority (2003) 20 VAR 227 at 230-231. See also Lucy Cooper and ACT Housing (DT03/18 dated 22 June 2004).

16. In his complaint to the Discrimination Commissioner, the complainant identified disability and his race as the grounds upon which he was discriminated against by the respondent and employment as the area in which the discrimination occurred. The matter was subsequently dealt with on that basis during the investigation conducted by the Discrimination Commissioner pursuant to section 73 of the Discrimination Act and on referral of the matter to the Tribunal under section 87 of the Discrimination Act, although the complainant subsequently advised the Discrimination Commissioner, and confirmed at the hearing, that he did not wish to pursue a complaint against the respondent based upon his race.

17. Discrimination in the area of employment is addressed by section 10 of the Discrimination Act. That section makes unlawful, in the area of employment, certain specified conduct of an employer. No suggestion was made that the respondent was, in fact, the employer of the complainant. Section 10 does not, in that event, afford a basis for a finding of discrimination against the respondent.

18. At the hearing of the strike out application the respondent’s legal representative, Mr R MacLean accepted, however, that the respondent was a provider of services and subject, in the circumstances of this case, to the operation of section 20 of the Discrimination Act. He did, however, request the opportunity to make further submissions to the Tribunal as to whether it had jurisdiction to consider a complaint of a different nature to that referred to it by the Discrimination Commissioner if the Tribunal rejected the respondent’s strike out application.

19. Section 20 of the Discrimination Act provides:

20    Goods, services and facilities

It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—

(a)by refusing to provide those goods or services or make those facilities available to the other person; or

(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.

20.  In order for the complainant to substantiate his complaint it would be necessary for him to establish:

(i)     that the complainant had a disability;

(ii)that he was treated unfavourably by the respondent in the manner described in paragraph (a), (b) or (c) of section 20 of the Discrimination Act;

(iii)that the reason for the unfavourable treatment of him was the disability from which he suffered; and

(iv)that the unfavourable treatment occurred in the course of the provision of services by the respondent.

21. The respondent did not dispute that the complainant had a disability arising from the injury suffered by him on 13 November 2004 or that the treatment which he complains was unfavourable to him occurred in connection with the provision of services by the respondent. Mr MacLean also informed the Tribunal that, for the purpose of the strike out application, the respondent did not contest the complainant’s assertion that he had been unfavourably treated by the respondent in the manner described in section 20 of the Discrimination Act. The respondent denied, however, that the reason for any unfavourable treatment was the complainant’s disability.

22.  It appears from the material before the Tribunal that the role being performed by the respondent at the time of the events relied upon by the complainant was as an approved rehabilitation program provider under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

23.  Under section 34D of the SRC Act the responsible authority, COMCARE, is required to determine standards to be met by approved program providers.  The standards are required to be met to become and remain registered. 

24.  It is unnecessary to set out all of the relevant terms of the standards except to note that they include a requirement that an approved program provider adopt as the priority, in dealing with the rehabilitation of an injured employee, the return of the employee to the same job with the same employer (see clause 3.1 of the standards).

25. The imposition of such a positive obligation, supported by other specific obligations, on an approved provider affords an arguable basis for a conclusion that any action or inaction on the part of a service provider that is inconsistent with such an obligation amounts to unfavourable treatment of the kind described in section 20 of the Discrimination Act. A difficulty for accepting such an argument in the circumstances that existed in this case might arise, however, from the fact that it is a matter within the discretion of the employer to engage a service provider (see section 37 SRC Act) and some of the material available to the Tribunal suggests that the temporary and later permanent cessation of involvement of the respondent occurred at the initiative of the department and not the respondent.

26.  A further difficulty, at least in relation to the alleged failure of the respondent to ensure that the officers of the department did not allow the meetings attended by the complainant to become distracted by issues unrelated to the complainant’s rehabilitation, is that clause 2.10 of the standards requires that in the planning and implementation of a return to work plan the approved program provider will be sensitive to personnel management issues and employee relations at the employee’s workplace.  Further, the complainant’s record of the discussion of that meeting provides some support for a finding that the meeting was terminated by the complainant thereby depriving the respondent opportunity to act in the way that the complainant suggested it should.

27.  In view of the concession made by the respondent’s representative it is unnecessary to resolve the issues addressed in the preceding two paragraphs.

28.  The primary submission made by Mr MacLean was that there was no evidence to support a conclusion that the officers of the respondent had acted in the way that they did because of the injury suffered by the complainant on 13 November 2004 and his resulting disability.

29.  Having considered all of the material relied upon by the complainant, I am unable to find any evidence to support such a conclusion.  Nor, at the hearing, did the complainant identify any such evidence.  It seems clear, on the basis of that material, that the true reason for the respondent’s conduct was the impediment to it achieving a more successful outcome for the complainant that resulted from the difficulties that existed in the workplace for the complainant’s relationship with his supervisor.

30. In the absence of any evidence capable of supporting a finding necessary to be made by the Tribunal to substantiate a complaint under section 20 of the Discrimination Act, the appropriate order is for the Tribunal to dismiss the complaint as lacking in substance.

AUSTRALIAN CAPITAL TERRITORY

DISCRIMINATION TRIBUNAL

APPEARANCE DETAILS

To be completed by Member's Staff

________________________________________________________________________

FILE NO: DT05/526

COMPLAINANT:          AHMED BAHGAT

RESPONDENT:            SERENDIPITY PTY LTD T/AS ADVANCED

PERSONNEL MANAGEMENT

COUNSEL APPEARING:    COMPLAINANT:    

RESPONDENT:    MR R MACLEAN

SOLICITORS:              COMPLAINANT:    

RESPONDENT:    DEACONS

OTHER:  COMPLAINANT:    SELF

RESPONDENT:    

TRIBUNAL MEMBER:   MR M H PEEDOM, DEPUTY PRESIDENT

DATE OF HEARING:      18 OCTOBER 2006          PLACE: CANBERRA

DATE OF DECISION:     23 OCTOBER 2006          PLACE: CANBERRA

COMMENT: