Cavar v Uniting (NSW Act)

[2020] NSWCATAD 82

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Cavar v Uniting (NSW ACT) [2020] NSWCATAD 82
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 age and race discrimination to proceed is refused.
Catchwords:	EQUAL OPPORTUNITY – leave to proceed - principles applying to grant of leave – age and race discrimination in employment – causation – inferences
Legislation Cited:	None cited
Cases Cited:	Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Celia Cavar (Applicant) Uniting (NSW ACT) (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Hillard & Berry Solicitors (Respondent)
File Number(s):	2020/00028919
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, Uniting (NSW ACT). The applicant alleged that she was discriminated against on the basis of her race and age in in the arrangements the respondent made for determining who should be offered employment and in determining who should be offered employment.

2. The President declined the complaint as lacking in substance under s 92 of the AD Act. On 18 December 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. The applicant claimed that she was discriminated against on the basis of her age and race when she applied for employment with the respondent. She said that at the interview, the interviewer asked her why she needed to work at her age. She said that she had a lot of experience in aged care services and wanted to return to that work.

9. The applicant claimed that at the interview the manager made a comment “Why you need to work at those ages”(sic) and that “many of [the respondent’s] staff are from different race… yellow, black, and so on. So that is the crucial fact for discrimination against me. I do not belong to their race and their background.”

10. She provided a copy of an email from the respondent dated 25 January 2019 in which it advised her that she had progressed to the next stage in the recruitment process, involving compliance checks. It requested she comply with requests for references, a functional assessment and a police check as well as a cop of her passport certified by a Justice of the Peace and a statutory declaration as proof that she could work in Australia. She complained that they had requested this information without checking what she had already submitted and it was “illegal”.

11. She claimed that another person then telephoned her on behalf of the respondent and stated that they could not employ her as she was not allowed to work in Australia. The applicant said she told this person she was lying and hung up the phone. She said she believed they felt she was an old woman. She admitted that they did not say it but “they are thinking it”.

The relevant legislation

12. 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.”

13. 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.”

14. Section 49ZYA of the AD Act 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)”

15. 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.”

16. 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 or race in the same or similar circumstances.

17. The relevant provisions are s 7(1)(a) and 8(1)(b) with respect to race discrimination; and s49ZYA(1)(a) and s 49ZYB(1)(b) with respect to age discrimination.

The respondent’s case

18. The respondent produced written submissions at the hearing which had not previously been filed. I offered to adjourn to allow the applicant time to review the submissions but she refused this and refused to read them. I therefore summarised the submissions for her orally at the hearing so that she was aware of their content.

19. The respondent stated that the case lacked merit. Despite the applicant claiming that discriminatory comments were made at the interview, in fact she progressed to the stage of undergoing a medical test and the respondent requested that she provide the necessary documentation. She was ultimately not successful because she did not complete the required checks:

1. She was unable to provide referees; and

2. She did not provide a criminal record check.

20. The respondent’s legal representative claimed that the applicant had made threats over the phone that she would commence criminal proceedings unless she was paid compensation.

21. The respondent submitted that the complaint was vexatious.

22. The applicant withdrew her claims about the comments made at the interview but said that she suspected that the respondent was “doing something behind my back” and they did not treat her favourably.

Consideration

23. To prove direct discrimination on the ground of age, 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 same race in the same or similar circumstances, and it did so on the grounds of her race or age.

24. 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.”

25. Taken at its highest, the applicant’s case relies on the following conduct:

1. At the interview a manager asked “Why you need to work at those ages”(sic) – it is noted that the applicant said she did not rely on this comment at hearing;

2. Many of the staff employed by the respondent are of a different race to the applicant;

3. She was required to provide evidence of her ability to work in Australia, which she failed to do; and

4. She did not receive an offer of employment.

26. In not receiving employment, it could be said that she was treated less favourably. However, there is no evidence that this was done on the ground of her race or her age. The Tribunal would have to draw inferences from the facts above and no such inference can reasonably be drawn. In addition, an inference cannot be made where more probable and innocent explanations are available on the evidence, as is the case here (Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 at [8]).

27. Even if the comment at interview is relied upon, in fact the applicant progressed after the interview to the next stage. Therefore on her own evidence she was not treated differently until she failed to provide the documentation requested by the applicant, which supports an inference that her failure to take part in the compliance check is the more probable reason.

28. The respondent’s conduct in not offering her employment in those circumstances, if proven, would not constitute evidence of a contravention of the AD Act or regulations. The applicant has drawn spurious and racially targeted conclusions to support her complaint.

29. I consider that her complaint is misconceived, bordering on vexatious and lacking in substance, and in addition, the conduct alleged, if proven, would not disclose the contravention of a provision of the AD Act or the regulations. In those circumstances it would not be fair and just to grant leave to proceed.

Orders

1. Leave for the applicant’s complaint of age and race 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 Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 March 2020