Cavar v Coles Supermarkets (Australia) Pty Ltd

[2020] NSWCATAD 83

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Cavar v Coles Supermarkets (Australia) Pty Ltd [2020] NSWCATAD 83
Hearing dates:	5 February 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1)   Leave for the applicant’s complaint of discrimination to proceed is refused.
Catchwords:	EQUAL OPPORTUNITY – leave to proceed - principles applying to grant of leave – race and age discrimination in employment – causation
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Celia Cavar (Applicant) Coles Supermarkets (Australia) Pty Ltd (Respondent)
Representation:	Solicitors: Applicant (Self represented) Coles Supermarkets (Australia) Pty Ltd (Respondent)
File Number(s):	2019/400643
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant in these proceedings seeks the leave of the Tribunal to proceed with her complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 7 February 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from the applicant against the respondent, Coles Supermarkets (Australia) Pty Ltd. The applicant alleged that she was discriminated against on the basis of her race and her age in the terms on which she was offered employment.

2. The President declined the complaint as lacking in substance under s 92 of the AD Act. On 11 November 2019 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

3. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the Act).

4. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.”

5. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so ( s93A).

6. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

7. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

The nature of the complaint

8. There are two components to the complaint. The complaint was difficult to understand but based on the written material and what the applicant said at the hearing I have summarised it below.

9. In the first component the applicant claimed that she was discriminated against on the basis of her age and race by the respondent in that:

1. After she was employed by the respondent at its Maroubra store she received training;

2. When she went on leave the respondent “stalked” her by sending her a letter on 27 July about her availability to work while she was overseas. The letter of 27 July stated “we need to confirm your availability… If you do not return the information to the store by Friday 3rd August 2018, then we will assume you no longer wish to work for us”. The 6 August email stated “As you have not returned your availability information and have not made contact with us, we will be unable to offer you ongoing work”.

3. She responded on 15 August 2018 with reasons why she was not available. She returned on 20 August 2018. On that date she replied to the email stating “Your letter is illegal and your action too towards me, and for that reason you will be prosecuted together with [manager’s name] personally”.

4. She did not receive any work subsequently; and

5. She claimed the manager was of “black race” and also “Muslim”.

10. The second component of the complaint related to the applicant’s application for employment at the respondent’s Eastgardens store. She said she was not successful. She claimed this was because of her race. The main basis on which she said that she was discriminated against was that the managers she dealt with were “black” and Chinese which she was not, and were significantly younger than her. She said someone else was placed in her position and that it was “most possible” that the successful applicant was Chinese.

The relevant legislation

11. Section 7 of the AD Act provides:

“7 What constitutes discrimination on the ground of race

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

(a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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, or

(b) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(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.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.”

12. Section 8 provides:

“8 Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of race—

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

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

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

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

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

(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.”

13. Section 49ZYA provides:

“49ZYA What constitutes discrimination on the ground of age

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator—

(a) on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, 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 who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, 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.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

(3) (Repealed)”

14. Section 49ZYB provides:

“49ZYB Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of age—

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which employment is offered.

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

(a) in the terms or conditions of employment that are afforded to the employee, or

(b) by denying or limiting 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.

(3) This section does not apply to employment for the purposes of a private household.”

The respondent’s case

15. The respondent submitted that the applicant commenced employment as a casual team member at its Maroubra store on 28 May 2018, and worked only one shift, on 12 June 2018. Her employment ended on 6 August 2018, because of her failures to attend for work and notify her availability for shifts. The respondent considered she had abandoned her employment. This matter was the subject of an unfair dismissal claim at the Fair Work Commission lodged by the applicant on 4 September 2018 and subsequently discontinued by her. The respondent said it had concerns about her conduct while she was employed and alleged that the applicant had sent threatening texts to staff.

16. In relation to the second component of the complaint the respondent said that the applicant subsequently applied for numerous roles including one at Eastgardens for a casual position. The respondent submitted that it received more than 250 applications for the available positions, and of those it interviewed 24 including the applicant. It offered roles to 9 (not including the applicant). These nine persons were the most suitable candidates having regarding to their applications, resumes, references, availabilities to work, travel arrangements and performance at the interview.

Consideration

17. The applicant’s complaint is of direct discrimination – that is she was treated less favourably by the respondent than it treated or would have treated someone not of her age in the same or similar circumstances. The discrimination is claimed to have occurred in either not offering her or dismissing her from employment in the first case, and not offering the applicant employment in the second case.

18. The complaint comes within the following provisions:

1. With regard to age discrimination – s49ZYA(1)(a) and s 49ZYB(1)(b) and (2)(c).

2. With regard to race discrimination – s 7(1)(a) and s 8(1)(b) and (2)(c).

19. To prove direct discrimination on the ground of age or race, the applicant would have to establish that the respondent treated her less favourably than it treated or would have treated an applicant of a younger age or of a different race in the same or similar circumstances, by refusing to offer her employment and/or terminating her employment.

20. In Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35], the Tribunal stated with regard to an applicant’s evidence:

“In undertaking this examination we believe that the appropriate way forward is to take the Complainant's evidence at its highest point, or in other words, and for the purposes of this exercise, to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination.”

21. In relation to the first component, the evidence taken at its highest is that she was offered employment, but she was dismissed while she was overseas because she did not respond to emails asking when she was available. She also sent a threatening email in response. She does not point to any evidence of age discrimination. The evidence of race discrimination is that the manager was of a different race to herself.

22. In the matter of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 the Appeal Panel of the then Administrative Decisions Tribunal stated at [28]:

“The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.”

23. The obstacle facing the applicant is that she has failed to identify any evidence that her age or race was the real, genuine or true reason for the actions of the respondent in either case. By her own admission she was overseas and did not reply to messages from the respondent about work until her return. The correspondence indicates that the respondent wanted to know her availability for work but set a time limit by which she must reply or miss out on work.

24. In relation to the second component the applicant progressed further than the vast majority of applicants in the recruitment process which was conducted by the managers she complains about. This contradicts her claim that she was discriminated against on the ground of age or race. She does not point to any evidence to indicate she was treated less favourably because of her age or race apart from her reliance on the fact that the managers at the interview were a different race to herself which is not evidence of discrimination.

25. With regard to s 92 I am of the view that the applicant’s complaint is misconceived and lacking in substance. I am also satisfied that the conduct alleged, if proven, would not disclose the contravention of a provision of the AD Act or regulations.

26. In those circumstances it would not be fair and just to grant leave to proceed.

Orders

1. Leave for the applicant’s complaint of discrimination to proceed is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 March 2020