Cusumano v Commissioner of Police, NSW Police Service
[2011] NSWADT 50
•11 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ibrahim v Sydney Local Health Network [2011] NSWADT 50 Hearing dates: 1 March 2011 Decision date: 11 March 2011 Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of race discrimination in employment to be the subject of proceedings in the Tribunal is refused.
Catchwords: LEAVE - race discrimination complaint declined by President of Anti-Discrimination Board as lacking in substance - whether fair and just for complaint to proceed - no evidence that treatment was on the ground of race Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC
Dutt v Central Coast Area Health Service [2002] NSWADT 133;
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26Category: Interlocutory applications Parties: Tony Ibrahim (Applicant)
Sydney Local Health Network (Respondent)Representation: Tony Ibrahim (Applicant in person)
Nathan Rudd (Respondent)
File Number(s): 111005
REASONS FOR DECISION
Introduction
Mr Ibrahim complained to the Anti-Discrimination Board that he had been discriminated against by his employer, Sydney Local Health Network (SLHN), on the ground of his race (Egyptian). The President of the Board declined the complaint as lacking in substance. Mr Ibrahim requested that his complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 ( AD Act ), s 96.
The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The applicant bears the onus of persuading the Tribunal that leave should be granted. The only issue in this case is whether the complaint has sufficient merit to justify leave being granted.
Background
In 2002 Mr Ibrahim commenced employment at Royal Prince Alfred Hospital as a security officer. His complaint of race to discrimination covers the period from the 28 June 2009 to 28 June 2010. His main concern is that he has been stood down from his employment without pay and has been told that he cannot return to work until he has a psychiatric assessment. He has not worked since 15 September 2009 and is currently on unpaid leave.
On the 15 September 2009 Mr Ibrahim left work on sick leave because he had been rostered to work with Mr Lahood. He says that Mr Lahood, who is of Lebanese background, has continually harassed and bullied him since July 2003. (Mr Ibrahim made it clear that none of the bullying or harassment was on the ground of Mr Ibrahim's race.) Following the incident on 15 September 2009, the SLHN has refused to allow Mr Ibrahim to return to work until he has undergone a psychiatric assessment.
SLHN's response to Mr Ibrahim's complaint is that workers compensation certificates from three of his own doctors state that he needs to see a psychiatrist. The decision to prevent him from returning to work until he has done so was made by the Director of Corporate Services. That decision was made so that the SLHN could determine Mr Ibrahim's fitness for duty and to determine what arrangements needed to be made, if any, to ensure his safe return to work. It is also necessary, according to SLHN, so that their workers compensation insurer can determine liability for his claim. Despite organising several appointments, Mr Ibrahim has refused to attend an appointment with a psychiatrist.
Consideration of complaint
Legislative provisions
To substantiate his complaint, Mr Ibrahim would have to prove that:
1. he is a member of a particular race as defined in s 4;
2. the alleged conduct relates to the terms or conditions of his employment or any other detriment: AD Act , s 8(2)(a) and (c);
3. SLHN treated him less favourably than it 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) (differential treatment); and
4. the alleged conduct was on the ground of Mr Ibrahim's race: AD Act , s 7(1)(a) (causation).
Race
Mr Ibrahim nominated his race as Egyptian. There is no dispute that this constitutes a race within the meaning of that term in section 4 of the AD Act .
Terms and conditions of employment
SLHN did not dispute that the conduct about which Mr Ibrahim complains relates to the terms and conditions of his employment and/or that it constitutes a detriment.
Differential treatment
The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant 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 the applicant, 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 the respondent treated the applicant 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] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.
Causation
The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way he was treated must be his race: AD Act , s 4A. There is no need to prove that a respondent intended to discriminate. Discrimination may not be conscious. However, the fact that the reason for the conduct is almost always within the respondent's knowledge, means that it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or his case.
Reasoning
Mr Ibrahim accepts that there is no direct evidence that his race was one of the reasons his employer has insisted that he undergo a psychiatric assessment before he returns to work. He says that an inference can be drawn that race was a reason for that treatment because his manager, Mr Lewis treats migrants differently from employees from an Anglo-Saxon background. He says that because he spoke up about workplace safety issues Mr Lewis has targeted him and persuaded his doctors to insist on a psychiatric assessment.
The response of SLHN was that it was not until July 2010 that Mr Ibrahim ever mentioned race discrimination as being an issue for him in the workplace. SLNH also said that it was not Mr Lewis's decision to insist on a psychiatric assessment. That decision was made by the Director of Corporate Services. Dr Kafiris, one of Mr Ibrahim's treating doctors, removed the requirement for a psychiatric assessment from the updated medical certificate dated 8 January 2010. SLHN continued to insist that he attend either a psychiatric or psychological assessment because Dr Kafiris had previously made that recommendation as had two of Mr Ibrahim's previous general practitioners.
In my view the complaint lacks merit. It is highly implausible that Mr Ibrahim's national origin (Egyptian) is a reason for insisting that he undergo a psychiatric assessment before returning to work. That decision is far more plausibly explained on the basis of the recommendations of three of Mr Ibrahim's general practitioners. There is no evidence to support Mr Ibrahim's theory that someone is telling his doctors to insist on a psychiatric assessment.
Order
Leave for the applicant's complaint of race discrimination in employment to be the subject of proceedings in the Tribunal is refused.
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Decision last updated: 11 March 2011
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