Dutt v Central Coast Area Health Service
[2002] NSWADT 133
•08/06/2002
CITATION: Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 revised - 27-Nov-2002 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Arunjit Dutt
RESPONDENT
Central Coast Area Health ServiceFILE NUMBER: 991085; 001017 HEARING DATES: 14/08/00-18/08/00, 30/10/00-31/10/00, 01/11/00, 26/03/01-28/03/01, 13/09/01-14/09/01 SUBMISSIONS CLOSED: 11/22/2001 DATE OF DECISION:
08/06/2002BEFORE: Rice S - Judicial Member; Alt M - Member; McDonald O - Member APPLICATION: Race Discrimination - In work - Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Freedom of Information Act 1989CASES CITED: Director-General of Education v Atkins & Ors (1989) EOC 92-263
Paramasivam v Wheeler & Ors [2001] FCA 231
Briginshaw v Briginshaw (1938) 60 CLR 336
Williams v Regional Publishers Pty. Limited [1997] NSWEOT
State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287
Sharma v Legal Aid Queensland [2002] FCAFC 196
Department of Health v Arumugam [1988] VR 319,331
Director-General of Education v Breen & Ors (1984) EOC 92-015
Helton v Allen (1940) 63 CLR 691
Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
Edwards v Bourke Bowling Club Limited [2000] NSWADT 31
Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147
Khanna v Ministry of Defence(1981) I.C.R.
Hafez v Warilla Women’s Refuge Ltd & Ors [1997] NSWEOT
A v B [1997] NSWEOT
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT
Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3
Sivananthan -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Elahi v Bristol and Weston Health Authority [EAT 138/89]
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
D -v- Berkeley Challenge Pty Ltd [2001 NSW ADT 92
Waterhouse v Bell (1991) 25 NSWLR 99
University of Ballarat v Bridges & Anor (1995) EOC 92-681
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
Bogie v The University of Western Sydney EOC 92-313 (1990)
Phillips v Aboriginal Legal Service (1996) EOC 92-704
REPRESENTATION: APPLICANT
S Coleman, barrister
RESPONDENT
E Brus, barristerORDERS: 1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.; 2. The complaint of victimisation is dismissed.; 3. The respondent shall within 28 days, pay to the applicant the sum of $2,000.00 by way of compensation for loss and damage.; 4. The application for costs is dismissed.
CONTENTS
DECISION para 1
BACKGROUND para 2
COMPLAINTS para 6
CONDUCT OF THE INQUIRY para 14
Race
Victimisation
ALLEGATIONS para 15
EVIDENCE para 30
APPLICABLE LAW para 43
CONSIDERATIONS IN PROVING RACE DISCRIMINATION para 47
Race discrimination
Victimisation
EVIDENCE AND INFERENCE IN THIS MATTER para 86
Standard required of the evidence
“less favourable treatment” and “on the ground”
Reliance on inference
Evidence supporting an inference
Difficulty in obtaining evidence
Burden of proof
Possible evidence
Absence of evidence
FINDINGS OF FACT: RACE DISCRIMINATION para 105
Evidence supporting an inference of other grounds
No evidence supporting an inference of race as a ground
CONSIDERATIONS IN PROVING VICTIMISATION para 232
Allegation 1: race-based comment para 108
Allegations 2-12 para 135
“on the ground”
FINDINGS OF FACT: VICTIMISATION para 244
Detriment
Allegations 13-17
SUMMARY OF FINDINGS para 277
DAMAGES para 286
COSTS para 288
ORDERS end
1 For the reasons given below the Tribunal finds that Dr Dutt’s complaint of race discrimination is substantiated as to one of the 12 allegations made, and that Dr Dutt’s complaint of victimisation is not substantiated. The findings are summarised at the end of the decision.
BACKGROUND
2 Dr Dutt is a senior specialist radiologist. He holds Bachelor degrees in Medicine and Surgery from Calcutta University, a Diploma in Medical Radiodiagnosis from Liverpool University (UK), a Diploma in Medical Radiotherapy from Liverpool University, and a Masters degree in Medical Imaging from Liverpool University. Dr Dutt is a Fellow of the Faculty of Medical Imaging of the Royal College of Surgeons, a Fellow of the International College of Surgeons, a Fellow of the International College of Angiology, and a Fellow of the American College of Chest Physicians.
3 Among a range of appointments over a period of some 45 years, Dr Dutt was for 13 years Director of Medical Imaging and Chief Consultant at Assunta Hospital, Kuala Lumpur, for 5 years Consultant in Medical Imaging to the University Teaching Hospital, University of Malaya, and for 5 years Consultant Radiologist in the Department of Medical Imaging at Southland Hospital, Invercargill, New Zealand.
4 Dr Dutt was born and raised in India. He is by birth Indian. He left India in 1956 after completing his Bachelor degrees and a period as registrar. But for three years in India in 1977-1980 Dr Dutt has, since 1956, worked in England, Malaysia, Singapore, New Zealand and Australia.
5 From September 1986 Dr Dutt was employed by Central Coast Area Health Service (CCAHS) at Gosford Hospital as the senior staff specialist in the Hospital’s Medical Imaging Department.
COMPLAINTS
Race
6 On 26 March 1997 Dr Dutt wrote to the Anti-Discrimination Board complaining of “racial discrimination in a public hospital of NSW”. He wrote that a range of race-based treatment “has been perpetrated by Dr RB Spark, Director of Medical Services, (acting) Area Medical Director, Gosford Hospital, Central Coast Area Health Services”. Over the following weeks Dr Dutt elaborated on his complaint, providing the Anti-Discrimination Board with documents and photographs.
7 The President’s first letter regarding Dr Dutt’s complaint of race discrimination, dated 5 September 1997, was addressed to Dr de Carvelho, Chief Executive Officer of the CCAHS. From the time of that letter the CCAHS has accepted responsibility for the conduct alleged by Dr Dutt, and liability for any findings of unlawful discrimination in these proceedings. Accordingly no issues under sections 52 and 53 of the Anti-Discrimination Act (‘ADA’) arise in this matter.
8 The President formed the view that Dr Dutt’s complaint of race discrimination could not be conciliated, and on 6 August 1999 he referred the complaint to the Tribunal for inquiry.
Victimisation
9 On 16 June 1999 Dr Dutt wrote the first of a series of letters to the Anti-Discrimination Board complaining of “victimisation of ‘dismissal action’ as expressed in the letter of Dr RB Spark”. Over the following weeks Dr Dutt elaborated on his complaint with documents and further correspondence, the last such letter being received on 20 September 1999.
10 The President first wrote in October 1999 to convey to the CCAHS Dr Dutt’s complaint of victimisation.
11 With the agreement of the parties, on 3 March 2000 the President referred Dr Dutt’s complaint of victimisation to the Tribunal for inquiry, on the basis that it could not be conciliated.
12 The two referrals were, with the consent of the parties, joined into the one inquiry (s97 ADA).
13 The President’s referral letter of 3 March 2000 appears to refer six separate complaints of victimisation. In fact Dr Dutt made only one complaint of victimisation, on 16 June 1999, and subsequent correspondence from Dr Dutt was in relation to that complaint. The Tribunal formally directed that the inquiry would proceed on the basis that there were two complaints the subject of inquiry – one of race discrimination and one of victimisation – in relation to each of which a number of particular instances had been alleged.
CONDUCT OF THE INQUIRY
14 The inquiry was conducted in Gosford and Sydney for 13 days over a period of 13 months: on 14 to 18 August 2000 inclusive, 30 and 31 October 2000, 1 November 2000, 26 to 28 March 2001 inclusive, and 13 and 14 September 2001. Final written submissions were filed with the Tribunal on 22 November 2001. Both Dr Dutt and the CCAHS were legally represented at all stages of the inquiry.
ALLEGATIONS
15 Dr Dutt’s complaints were set out in Points of Claim. The CCAHS filed Points of Defence which denied Dr Dutt’s allegations.
16 In his Points of Claim Dr Dutt alleged a number of instances of unfavourable treatment on the ground of his race, and a number of instances of being subjected to a detriment on the ground that he had made allegations of race discrimination.
17 At the close of Dr Dutt’s case, and before any evidence was led by the CCAHS, the Tribunal reviewed the evidence in light of the claims made by Dr Dutt. The Tribunal’s procedure in an inquiry is, within proper limits, for it to determine (Director-General of Education v Atkins & Ors (1989) EOC 92-263 at p 77,627), and section 73(5) of the Administrative Decisions Tribunal Act (ADT Act) provides, relevantly, that the Tribunal:
18 The Tribunal formed the view that some of the conduct Dr Dutt complained of either could not be substantiated or, even if it could be, it could not constitute a breach of the ADA, having regard to the requirements of sections 7 and 50.
(a) is to act as quickly as is practicable, and
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing – may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases . . .
19 In coming to this view, the Tribunal was conscious of the difficulty faced by an applicant in Dr Dutt’s position (see the discussion at paras 47-85 below). In conducting an inquiry and not an adversarial hearing, the Tribunal was concerned to ensure that every reasonable opportunity was afforded Dr Dutt to establish what he could, in most instances, only suspect to have been the ground for the conduct he complained of. Further, the Tribunal took account of the considerations that in employment matters “the respondent . . . invariably controls all information essential to the applicant’s case” (Thornton M., The Liberal Promise OUP Melbourne 1990, at p182), and that “there will be many cases . . . where . . . proof of the discrimination would only be able to be made out if the person who wrote the correspondence were cross-examined upon it”. (Hill J in Paramasivam v Wheeler & Ors [2001] FCA 231 at paragraph 20). Counsel for Dr Dutt made a submission to the Tribunal in terms similar to Professor Thornton’s observation.
20 The Tribunal identified those of Dr Dutt’s specific allegations which in the Tribunal’s view could, if substantiated, constitute a breach of the ADA, and directed that the inquiry be confined to those allegations. The Tribunal directed that the CCAHS need not lead evidence to respond to the remainder of the allegations.
21 Further, in light of the evidence given by Dr Dutt, the Tribunal directed that some of the allegations in the Points of Claim in support of his complaint of race discrimination should be answered by the CCAHS as allegations in support of his complaint of victimisation, and that some of the allegations in the Points of Claim in support of his complaint of victimisation should be answered by the CCAHS as allegations in support of his complaint of race discrimination. This direction was made on the basis that a respondent needs to meet a different case, with different considerations, according to whether it is characterised as a complaint of discrimination or of victimisation.
22 Dr Dutt’s allegations of conduct on which the Tribunal proceeded to conduct the inquiry into the complaint of race discrimination were:
23 Dr Dutt’s allegations of conduct on which the Tribunal proceeded to conduct the inquiry into the complaint of victimisation were:
The non-appointment of the Applicant to the position of Acting Head of the Medical Imaging Department notwithstanding a recommendation of a Review Committee.
The refusal to convene the Organ Imaging Sub-Committee of which the Applicant was permanent secretary.
Not allowing the Applicant to sign off on CT reports and to have provisional reports prepared by the Applicant checked and signed by private practitioners.
The refusal to review the decision taken in the appointment of a Director of Medical Imaging.
Requesting that the Applicant not apply for the position of Director of Medical Imaging notwithstanding he had been performing the duties for 4 years.
Refusal to investigate complaints of third persons of behaviours of staff towards the Applicant.
Accepting complaints made against the Applicant by staff without proper investigation and/or without opportunity for the Applicant to question those persons making complaint.
Claiming there were significant errors in the Applicant's work.
The Medical Director informing the Applicant that he will destroy him.
The Medical Director saying to the Applicant "You bloody Indian, you bloody black. I will sack you and I know how to do it."
The failure to prevent and investigate the vandalising of the Applicant's office and the theft of his personal and professional items.
24 In addition, three further allegations arose in the course of evidence given by Dr Dutt.
Refusing the Applicant access to documentation requested under Freedom of Information legislation.
Using incomplete documents to demonstrate his poor clinical performance.
Subjecting the Applicant to disciplinary actions, threats of termination of employment and prohibition on performing professional work.
Denying the Applicant basic work items such as letterhead and stationery.
Requiring the Applicant to sign an attendance book when it is not required to be done by any other full time staff specialist in the public health system.
25 The first related to the requirement that Dr Dutt use the Lanier dictation system. Counsel for Dr Dutt agreed that this allegation was one of indirect discrimination in that it identified the imposition of a requirement or condition with which Dr Dutt says he was unable to comply.
26 Such an allegation invokes s7(1)(c) of the ADA Act and raises quite different evidentiary considerations from those raised by an allegation of direct discrimination under s7(1)(a). Although evidence given by Dr Dutt clearly raised the issue of a requirement or condition with which he had to comply, no evidence was led in his case which addressed the further necessary considerations in s7(1)(c).
27 Accordingly the Tribunal made a formal finding at that stage that that allegation could not be made out on the evidence on which Dr Dutt relied.
28 The second further allegation related to Dr Dutt’s having applied for the position of director of the Medical Imaging Department. The Tribunal directed that that allegation be added to the list of allegations by Dr Dutt to which the CCAHS would be expected to respond.
29 The third further allegation which arose related to the re-arrangement of office space in the Medical Imaging Department in March 1997. The Tribunal directed that that allegation be added to the list of allegations by Dr Dutt to which the CCAHS would be expected to respond.
EVIDENCE
30 The following paragraphs are a general summary of the relevant matters on which the witnesses gave evidence. Statements and annexures for each witness were admitted into evidence, subject to some objections.
31 Dr Dutt gave oral evidence over five days, describing the circumstances of each of his allegations.
32 Mr Horner was the Chief Radiographer in the Medical Imaging Department. His evidence was of significant relevance to the inquiry, as he had worked closely with Dr Dutt for the whole of Dr Dutt’s time at the Hospital. Mr Horner had first hand knowledge of the circumstances surrounding many of the allegations made by Dr Dutt. He gave evidence in relation to:
33 Ms Robson, the assistant Chief Radiographer in the Medical Imaging Department, gave evidence about systems of film reporting and report dictation system, Dr Dutt’s access to stationery, and the re-arrangement of rooms within the Department.
· the history of the Department and Dr Dutt’s role in developing the Department
· the Department’s systems and overall manner of operation
· his knowledge of complaints concerning Dr Dutt’s ability as a radiologist
· his knowledge of Dr Dutt’s practices in relation to film reporting and use of the dictation system
· Dr Dutt’s manner of speech and relations with other staff
· Dr Dutt’s access to stationery and use of the photocopier
· the re-arrangement of rooms within the Department, and use of the attendance book.
34 Mr Smith, a senior radiographer and a sonographer in the Medical Imaging Department, gave evidence of the systems of film reporting and dictation, Dr Dutt’s practices in relation to film reporting and use of the dictation system, the re-arrangement of rooms within the Department, and Dr Dutt’s relations with other staff.
35 Mr Wright was Deputy Director of Finance for the CCAHS. His evidence was concerned exclusively with the operation of the trust accounts of the CCAHS to which Dr Dutt and other specialists contributed. Dr Dutt’s allegations concerning the trust accounts were among those which the Tribunal directed that the CCAHS need not respond to.
36 Dr Sparke was Director of Medical Services for Gosford Hospital, having commenced at the Hospital in 1990. He gave evidence for more than a day. In our view Dr Sparke’s evidence was, with that of Dr Dutt, of the highest relevance to the inquiry. Dr Sparke was in a position of authority in relation to Dr Dutt, was in that position for the greater part of Dr Dutt’s period at the Hospital, and had regular and close dealings with the Medical Imaging Department and its business. Dr Sparke’s role is central to many of the allegations made by Dr Dutt. He gave evidence of:
37 Dr de Carvalho was the Director of Medical Services for the CCAHS and had been in that position since 1996. His evidence was most relevant in relation to matters of which he had first hand knowledge such as the conduct of investigations. Dr de Carvalho gave evidence of steps taken to investigate complaints made by and about Dr Dutt, in particular
· the way in which the Department was managed
· the operation of the Imaging Sub-Committee
· the processes for advertising and filling the position of Director of the Department
· the way in which CT accreditation was managed and the process of accrediting Dr Dutt
· the planning and implementation of the re-arrangement of offices in the Department
· Dr Dutt’s complaints and the manner in which they were responded to
· complaints concerning Dr Dutt’s competence and his reviews of Dr Dutt’s performance
· Dr Dutt’s relations with staff and his own dealings and relations with Dr Dutt
· his conversation with Dr Dutt giving rise to an allegation of explicitly race-based comments
· the attendance register
· his having issued two formal warnings to Dr Dutt
· Dr Dutt’s complaints concerning other staff
· Dr Dutt’s workload and output
· Dr Dutt’s request under the Freedom of Information Act, and
· his knowledge of when Dr Dutt had complained to the Anti-Discrimination Board.
38 Ms Gray, Ms LS Davis, Ms Foster, and Ms LJ Davis, were all Administrative Officers in the Medical Imaging Department. But for Ms LJ Davis, the scope of their evidence was confined to what they saw and heard of Dr Sparke’s conversation with Dr Dutt on 4 April 1997. Ms LJ Davis’s evidence extended to the supply of stationery to Dr Dutt.
· his investigation of Dr Sparke’s conversation with Dr Dutt giving rise to an allegation of explicitly race-based comments
· his knowledge of when Dr Dutt had complained to the Anti-Discrimination Board
· his knowledge of what had been reported to him by Drs Sparke and Davis concerning the Department, and
· the process of formal warnings in the CCAHS.
39 Dr Davis was the Director of the Medical Imaging Department, and had been in that position since 1995. His evidence was second only to that of Drs Dutt and Sparke in its degree of relevance to the inquiry. Dr Davis was Dr Dutt’s immediate superior, he was in that position for some years and for the greater part of the period during which Dr Dutt’s allegations arise, and he had direct responsibility for and/or involvement in many of the circumstances of the allegations made by Dr Dutt. He gave evidence of
40 Mr Leung was the Manager of the Medical Imaging Department and was in that position since 1994. He was previously a senior radiographer. His evidence was of significant relevance to the inquiry: he had first hand knowledge of the circumstances of many of the allegations made by Dr Dutt. He gave evidence of
· his previous experience as departmental head and the terms of his appointment to the Hospital
· the extent of his concurrent private practice
· disciplinary procedures in the hospital
· the system and practice of film reporting
· his response to Dr Dutt’s requests for information
· the planning and implementation of the re-arrangement of offices in the Department
· the receipt and investigation of complaints by and about Dr Dutt
· issues concerning Dr Dutt’s competency
· his relationship and dealings with Dr Dutt and relations between Dr Dutt and the other staff, and
· the nature and extent of his supervision of Dr Dutt.
41 The evidence of Mr O’Malley, the Director of Human Resources for the CCAHS, was limited to the circumstances in which applications were received and considered for the position of Director of Medical Imaging in 1995.
· relations between Dr Dutt and the other staff
· complaints made by and about Dr Dutt and the manner in which those complaints were responded to
· the planning and implementation of the re-arrangement of offices in the Department
· the system for producing dictated film reports
· Dr Dutt’s manner of speech
· Dr Dutt’s access to stationery, and
· Dr Dutt’s requests for information.
42 A large number of documents were admitted into evidence, including copies of investigative reports arising in part from complaints made by Dr Dutt.
APPLICABLE LAW
Race discrimination
43 Dr Dutt’s complaint of race discrimination invokes sections 7 and 8 ADA. In terms of section 7(1)(a) ADA, Dr Dutt says that the CCAHS treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a person of a different race. Under the ADA to treat someone in this way is to ‘discriminate on the ground of race’.
44 In terms of section 8(2)(a), (b) and (c) ADA, Dr Dutt says that his employer, CCAHS, discriminated against him on the ground of his race:
45 Under the ADA to discriminate in these circumstances is unlawful.
· in the terms or conditions of employment which it afforded him,
· by denying him access, or limiting his access, to benefits associated with his employment, and
· by subjecting him to other detriment.
Victimisation
46 Dr Dutt’s complaint of victimisation invokes section 50 of the ADA. In terms of s50(1)(c), Dr Dutt says that the CCAHS subjected him to detriment on the ground that he had alleged, or that it was suspected that he intended alleging, that he had been discriminated against.
CONSIDERATIONS IN PROVING RACE DISCRIMINATION
Standard required of the evidence
47 The CCAHS has submitted that the “appropriate standard of proof . . . is that as set out in Briginshaw v Briginshaw (1938) 60 CLR 336”. Briginshaw directs attention to the standard of the evidence on the basis of which the civil standard should be reached, in relation to certain types of issues. The emphasis is on the probative value of the evidence. As was said by this Tribunal in Williams v Regional Publishers Pty. Limited [1997] NSWEOT, where we understand the term ‘more proof’ to mean ‘better evidence’:
48 Evidence which meets the appropriate standard is identified in Briginshaw only by exclusion: it would not be “slender and exiguous proofs or circumstances pointing with a wavering finger” (per Rich J at p 350), nor “inexact proofs, indefinite testimony, or indirect inferences” (per Dixon J at 362). Put positively and in contemporary terms, evidence of the Briginshaw standard might be said to be evidence of high probative value.
. . . some matters will require more proof than others before a Tribunal can be satisfied that they are established on the balance of probabilities. For instance, a Tribunal will require more proof of the happening of an inherently improbable event than it will of an inherently likely one. The standard of proof is the same, but the evidence required to meet that standard will vary accordingly to the nature of the allegation.
49 The Briginshaw standard is considered appropriate when a serious allegation is being made in civil proceedings, which might lead to a finding on what could amount to criminal conduct. But “‘due regard must be had to the nature of the issue involved’ because not every case involves issues of importance and gravity in the Briginshaw sense” (State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287 citing G v H (1994) 181 CLR 387 per Deane, Dawson and Gaudron JJ at 399). Thus a Full Federal Court in State of Victoria was able to say that “[t]he mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test”.
50 The position taken most recently by a differently constituted Full Federal Court is unclear. In Sharma v Legal Aid Queensland [2002] FCAFC 196 the Court noted at para 40 that “[i]t was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw . . .”. The Court then said that
51 It is, with respect, unclear whether the Court agreed or not with that comment.
Racial discrimination is a serious matter which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319,331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature”.
52 In matters under the ADA in this Tribunal it is commonly accepted, across a wide range of allegations and factual circumstances, that findings should be made according to the evidentiary requirements of Briginshaw. Presumably, but rarely explicitly, this reflects a view that allegations under the ADA are grave and that there will, for a respondent, be serious consequences of any adverse findings (see also, for example, Ronalds C, Discrimination Law and Practice (Federation Press, Sydney, 1998) at p 182: “The standard of proof is the Briginshaw test”).
53 The ready acceptance of the appropriateness of the Briginshaw standard of evidence in discrimination matters, without apparent regard to the nature of the issue involved, is consistent with the view expressed by Hutley J.A in Director-General of Education v Breen & Ors (1984) EOC 92-015 at 75,440 that
54 It does appear that Hutley JA viewed the Briginshaw standard of evidence as one which is appropriate generally in relation to allegations of unlawful discrimination. If so, that authority, and the ready acceptance of it in many cases and in commentary, is apparently at odds with the Full Federal Court in State of Victoria , and with the principle stated by the High Court in G v H .
“. . . the evidence is to establish an unlawful – not criminal – act with serious consequences”. His Honour cited English authority which said “If the council is to be stigmatised as being guilty of an unlawful act under [the UK Race Relations Act ], I think that conclusion ought to be reached with reasonable confidence”, and went on to say of the decision of this Tribunal under appeal:
. . . I consider that the ruling disclosed an error of law in that the proof should have conformed to the standards laid down in the High Court . . . in Helton v Allen (1940) 63 CLR 691 at p 712 . . . [adopting] . . . Dixon J in Briginshaw . . . at p 361 . . .
55 We feel compelled by the latter authorities to not assume that the Briginshaw standard of evidence applies, and to have regard to the nature of the issue involved in this matter before deciding that the issue to be determined involves issues of importance and gravity in the Briginshaw sense.
56 The allegations made by Dr Dutt are of two sorts. All but one are allegations of unlawful discrimination in the absence of any explicit reference to Dr Dutt’s race. For those allegations Dr Dutt relies on inference to show that his race was a reason for the conduct. The various instances of conduct, if found to have occurred, were the conduct of a range of people, all officers of the CCAHS and all performing their ordinary duties. A finding that that conduct was unlawful discrimination is not in our view so grave as to warrant reliance on the Briginshaw standard of evidence. Such a finding would be well short of a finding of criminal conduct, and it would cause no reasonably foreseeable adverse consequence to the people concerned. The observation made in State of Victoria (para 49 above) could be made in similar terms for the CCAHS and the parties to the conduct in this matter: a finding that a government agency and its staff have contravened a provision of an anti-discrimination statute is not, in our view, sufficient to attract the Briginshaw test.
57 One allegation is of unlawful discrimination when explicit reference is alleged to have been made to Dr Dutt’s race by Dr Sparke. A finding that the comment alleged was in fact made does not approach a finding of criminal conduct, and there is no reasonably foreseeable adverse consequence for Dr Sparke’s livelihood. Such a finding might cause him embarrassment, and reflect to a degree on his personal reputation, but those are not, in our view, grave consequences which warrant reliance on the Briginshaw standard.
58 In summary, the issues to be decided in this case are not in our view so important or grave as to require proof on the basis of evidence of a Briginshaw standard.
“less favourable treatment” and “on the ground”
59 An applicant faces a difficult task in establishing direct discrimination under the ‘comparative’ approach of the ADA. There is in our view an issue to be resolved as to how the Tribunal follows the approach set out by the Appeal Panel in Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 in matters where the comparator is hypothetical.
60 The ADA requires Dr Dutt to establish, in relation to each of his allegations, that the CCAHS treated him “less favourably” in the same circumstances than it did or would have treated a person not of Dr Dutt’s race. This ‘comparative’ approach to proving direct discrimination is notoriously problematic: the NSW Law Reform Commission described it as both artificial and complex (Review of the Anti-Discrimination Act 1977 (NSW) Report 92, NSW Law Reform Commission, 1999, at 3.52, and generally at 3.31-34). Although the Commission recommended that a different approach be adopted, the ‘comparative’ approach remains in place in NSW.
61 The Appeal Panel in Aldridge sets out the two consecutive questions asked by the ADA in relation to a claim of direct discrimination: first, was there less favourable treatment and secondly, if so, was it on the ground of race? The Appeal Panel explained the consecutive nature of the issues in this way: “different treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation” (at para 45). The first question and, if appropriate, the second question must be asked and answered for each of the allegations (Aldridge at para 54).
62 The consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess “less favourable treatment”. The relevant treatment of a comparator is assessed, and from that it can be determined whether the applicant was treated less favourably. If less favourable treatment is established, that is the end of the comparative exercise, and attention turns to the ground or grounds for the treatment of the applicant.
63 When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant’s race would have been treated differently.
64 In Aldridge the Appeal Panel said that “if there is no relevant differential treatment it is unnecessary to consider the issue of causation”. In the case of a hypothetical comparison, an extension of this might be: ‘but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known’.
65 This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to “less favourable treatment” and “on the ground of race” might be answered as part of the same reasoning exercise.
Reliance on inference
66 If and when less favourable treatment is established, an applicant must show a causal link between that treatment and their race. If there is no direct evidence then an applicant must rely on inference. It is useful to bring together the current approach to drawing inferences in discrimination matters.
67 Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an inquiry or hearing; in The Liberal Promise at p182, Thornton says that “[u]nless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit . . . ”. It has been observed that
68 Similarly Justice Hill in Paramasivam v Wheller at paragraph 20 said:
it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves . . . The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (in Palmer C., Moon G., and Cox S. Discrimination at work: the law on sex, race and disability discrimination LAG, London, 1997 at p34)
69 Most recently, the Tribunal in Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 said at paras 121 - 127
there will be many cases . . . where the discrimination will not be able to be proved directly by reference to oral or written statements. There may well be cases where the discrimination may be able to be inferred from a course of conduct. . .
70 The exercise of drawing inferences was discussed in detail by this Tribunal, differently constituted, in Hafez v Warilla Women’s Refuge Ltd & Ors [1997] NSWEOT, in A v B [1997] NSWEOT, and in Edwards. The authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences:
There is no direct evidence before the Tribunal that these decisions of the Club were based on the applicant's race or sex or both. The applicant's case is based on circumstantial evidence.
This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. "
The Tribunal recognises the difficulty faced by an applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the applicant was on the ground of the applicant's race or gender.
In cases where there is no direct evidence of the discrimination, the applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R.
Evidence supporting an inference
i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts
ii. an inference must be reasonably drawn on the basis of the primary facts
iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference.
iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof
v. it is not enough that the inference is a mere possibility: it must be one of “probable connection”
vi. the inference must be a logical one, and not supposition
vii. an inference cannot be made where more probable and innocent explanations are available on the evidence.
Difficulty in obtaining evidence
71 When relying on inference an applicant must identify the evidence on which the inference can reasonably be based. A particular difficulty is, as Thornton among others has observed, that the respondent invariably controls the information necessary to the applicant’s case (Liberal Promise at p182).
72 The exercise is made even more problematic when the conduct in relation to which an inference is to be drawn took place in the context of employment. In Thornton’s view (Thornton M., ‘Revisiting Race’ in Racial Discrimination Act 1975: A Review, Human Rights and Equal Opportunity Commission, 1995 p81, at p90):
73 Thornton’s view (‘Revisiting Race’ at p92) is that
. . . employment complaints . . . are notoriously difficult, for the alleged racism quickly becomes interwoven with bona fide considerations of merit, including formal qualifications, experience, workplace practices and relations with one’s peers. Unless the conduct is unequivocal, such as including a written component, the burden of proof is virtually insuperable.
74 This difficulty for an applicant has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11
[t]he mere articulation of a rational explanation [by the respondent] can carry a probative weight which is difficult for the complainant to rebut . . .
Unless the evidence is incontrovertible, and it rarely is in employment complaints, the respondent is able to raise a bona fide explanation for the less favourable treatment and confound the proof problematic. The racist narrative told by the complainant then becomes inextricably intertwined with the respondent’s rational explanation for subjecting the complainant to the alleged detriment. It is therefore not surprising that the preponderance of [race complaints in employment] were dismissed because of the complainant’s failure to satisfy the burden of proof.
Burden of proof
. . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the respondents, and be difficult for complainants to elicit in any credible form.
75 A possible response to this very significant evidential hurdle for an applicant might be to shift the burden of proof to the respondent if and when the applicant can establish that there was less favourable treatment. (see Thornton Revisiting Race at pp 93-96; Bindman G., ‘Proof and Evidence of Discrimination’ in Hepple B. and Szyszczak E., Discrimination: the Limits of the Law, Mansell, London, 1992 at pp 57-58). The possibility and permissibility of shifting the burden during an inquiry was not canvassed in the NSW Law Reform Commission Report.
76 Although the approach of ‘shifting onus’ is not obviously unavailable under the ADA, the invariable practice of this Tribunal is to require the applicant to prove all elements of unlawful discrimination. An applicant, and in this matter Dr Dutt, must lead evidence, or evidence on which an inference can reasonably be based, that their race was a ground for any less favourable treatment.
Possible evidence
77 The Tribunal will be assisted by evidence of general circumstances and other conduct when considering whether it can draw an inference that race is more than a suspected or even a possible explanation, but is a probable ground, for the impugned conduct. This approach was proposed to the Tribunal in Carberry at page 2:
78 Similarly the Tribunal in Atkins v Director-General of Education at first instance, quoted by Mahoney JA in Director-General of Education v Atkins at p 77,626, said:
It was submitted [that] the Tribunal should consider all the circumstances surrounding the treatment received by the applicant at the hands of the respondent. It should take a global or overall view of those circumstances, and it is open to the Tribunal to infer that the respondent's actions and treatment of the applicant was on the ground of the race of the applicant.
79 Thornton criticises “this subtle elevation of the burden of proof to a requirement that a complainant prove racism in addition to an act of discrimination’ ( Revisiting Race at p 95). While not a requirement, the fact that it is often a necessary exercise is, however, a measure of the challenge faced by a complainant carrying the burden of proof under the current provisions of the ADA .
One method or mode of proof which might properly be adopted is to rely upon a concatenation of circumstances from which an inference might properly be drawn that the explanation for certain behaviour lies in or is founded on discriminatory attitudes or outlooks.
80 Thus it might be relevant to consider evidence of attitudes, beliefs and other conduct of the person responsible for the impugned conduct. It might be relevant to consider evidence of proportionality of races in the workplace; the manner and history of workplace operations with regard to employees’ race; patterns, with regard to employees’ race, of conduct such as granting benefits or imposing discipline; the existence or not of objective criteria for workplace decisions as an indicator of the likelihood of a subjective consideration such as race being a criterion; and the existence or not of a policy regarding race discrimination as an indicator of awareness of race as an issue in the workplace. In Carberry for example, the applicant relied on evidence showing the proportions, according to race, of people refused entry to the club over a period of years.
81 In Sharma v Legal Aid Queensland at first instance ([2001] FCA 1699 at para 63), Kiefel J considered, and rejected in the circumstances, the possibility of evidence of systemic racism for inferring that race was a ground for conduct:
Absence of evidence
The existence of racism in the community is acknowledged by the legislation in question. A possibility, in a given case, that it may explain a choice made in the appointment of a person, may arise. Whether that possibility can then be converted to a more substantial finding, one which allows an inference that racism in fact operated on the decision-making so as to satisfy the requisite standard, is a question of fact in each case. Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with [a fact of the case]. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making.
82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination.
83 The situation was summed up by a commentator in this way:
84 In just this way in Sivananthan -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, the applicant could rely on nothing more than his own suspicions as to the grounds for the respondent’s conduct. The Tribunal said at paragraphs 23 and 24:
Typically the race complainant says: I have no direct evidence that the act was motivated by racial discrimination but since no other reason has been presented for the (or no other reason I accept as valid) the only possible basis can be discrimination against me on the ground of my race . . . (Burns K, unpublished research paper, Kingsford Legal Centre, Sydney, 2000).
85 A submission was made for Dr Dutt in this matter in very similar terms to the position taken by Mr Sivananthan. It was submitted that “it is . . . clear that Dr Dutt was treated differently . . . on the basis of race”. Further it was submitted that in the circumstances described “[I]t was entirely reasonable for Dr Dutt to assume that the [treatment of him] was based on race”.
. . . The applicant has produced no direct evidence of race discrimination and he has not pointed to any circumstantial evidence which could permit us to draw the inference that race had "a causally operative effect" upon the impugned actions of the respondent . . .
. . . We were left in no doubt that it was the applicant's strongly held belief that he had been the victim of race discrimination but "the level of his belief went no further than a mere suspicion with any supporting material" . . . There was nothing in the applicant's voluminous evidence which in any way went beyond mere suspicion on his behalf that anyone associated with the respondent had at any time discriminated against him on the ground of race.
86 However, what is clear to a participant in events is not necessarily what can be established on the evidence, or even on inferences based on the evidence, and what is reasonable for a person affected by conduct to assume to be the ground for conduct is not necessarily what the evidence establishes. As Thornton observed: “if the manifold requirements of legal form have not been satisfied, discrimination will be found not to have occurred” (Revisiting Race at p84).
EVIDENCE AND INFERENCE IN THIS MATTER
Evidence supporting an inference of other grounds
87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt’s race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt’s race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct.
88 We consider concerns regarding Dr Dutt’s competence as a plausible ground for Dr Dutt’s not being appointed as Acting Head of the Medical Imaging Department, and as a probable ground for the delay in CT accreditation.
89 We consider poor management practices on the part of the CCAHS as a plausible ground for the manner in which room allocations were re-arranged, and for the delay in CT accreditation.
90 More generally, a probable ground for much of the conduct of which Dr Dutt complains is his manner of dealing with people. We are satisfied that, certainly from at least the mid-1990s, Dr Dutt had difficult inter-personal relationships with all other staff of the Imaging Department excepting some of the radiographers.
91 Of the radiographers Mr Horner was, for example, supportive of Dr Dutt. His evidence was “I have an excellent professional relationship with Dr Dutt and we have never had a harsh word in the 14 years I have known him”, that Dr Dutt has his “full support”, and that Dr Dutt “has been an inspiration to myself and the staff of this Department”. Similarly Ms Robson was generally supportive of Dr Dutt, saying that over 13 years she had a good working relationship with him and friendly dealings.
92 But every other person from whom we heard evidence was clearly not on friendly terms with Dr Dutt. The evidence, and our observation of Dr Dutt as a witness, satisfies us that Dr Dutt was seen as often, if not usually, having a brusque, impatient and demanding manner of interaction with other staff. Further, the evidence and our observation of Dr Dutt satisfies us that Dr Dutt was generally defensive, unwilling to acknowledge others’ views which do not support or accord with his own, and anxious to ensure, to the point of causing resentment, that his own undoubted experience and authority was recognised. Dr Sparke was, he said, very careful in his dealings with Dr Dutt, because of his concern at Dr Dutt’s apparent readiness to make a complaint about matters with which he disagreed.
93 In particular we are satisfied that Dr Sparke and Dr Davis held a strong antipathy towards Dr Dutt, and that this was a probable ground for their conduct. There is no evidence on which we can infer that this antipathy was itself on the ground of Dr Dutt’s race. A finding against Dr Sparke in relation to a race-based comment is not, as we discuss below, a basis in the circumstances for such an inference.
94 The antipathy is referrable in part to Dr Dutt’s personal characteristics we have described above. Dr Davis, despite being Dr Dutt’s immediate supervisor, deliberately avoided dealing directly with him. In his evidence he said “I used to have some discussions with Dr Dutt. It wasn’t easy. He had a different point of view . . . ”. Dr Davis met daily with other staff in the Department such as the manager and the clerical supervisor, but almost never with Dr Dutt. The only time Dr Davis would meet with his senior staff specialist radiologist, he said, was at quarterly committee meetings, and even then Dr Dutt or he may miss the meeting.
95 The antipathy was in our view compounded by Dr Dutt’s role in the hospital as a full-time staff specialist radiologist. Simply by carrying out that role in an effective manner, Dr Dutt seems to have threatened and actually disrupted an existing pattern of private radiology referrals in the Gosford Area, leading to a degree of resentment towards him from radiologists. It seems that the very position of a staff specialist may have been an incursion on existing arrangements private radiologists had for film reporting, and Dr Dutt’s prolific workload may have exacerbated the issue.
96 Dr Dutt’s poor relations with senior management in the CCAHS was in our view compounded by his own perception, and persistent promotion of the importance to the Department of his role as staff specialist. The trust account arrangements were such that Dr Dutt’s high output levels on film reporting generated significant funds for the Hospital. Dr Dutt had a perception, incorrect but understandable, that the funds generated were ‘his’ to expend for the Department’s development. Dr Dutt felt that his contribution to the Department, through the generation of funds for the trust account, was not appreciated or respected, and he said as much to his colleagues.
97 Dr Dutt’s poor relations with staff, peers and management went unaddressed. What formal performance assessment of Dr Dutt that existed was abandoned by Dr Sparke when he found, he says, Dr Dutt to be unresponsive. In the absence of any formal means of addressing and dealing with whatever dissatisfaction there was in the workplace, resentment of Dr Dutt festered. It then, at times, manifested as a ground for conduct of which Dr Dutt now complains.
No evidence supporting an inference of race as a ground
98 Whatever of the many other grounds there may have been for less favourable treatment of Dr Dutt, there is insufficient evidence on which we can infer that Dr Dutt’s race was a ground. This is a crucial finding, on which the greater part of Dr Dutt’s claim fails.
99 The evidence in this matter was dedicated almost exclusively to the facts and circumstances of the incidents complained of by Dr Dutt. There was however almost no evidence to support an inference that if the conduct was less favourable treatment then Dr Dutt’s race was a ground.
100 There is, for example, no evidence concerning the beliefs, attitudes, history or conduct of any of the relevant people, other than evidence regarding the alleged conduct involving Dr Dutt. There is little evidence concerning the manner in which the CCAHS conducted the workplace, other than evidence regarding the alleged conduct involving Dr Dutt. There is some evidence regarding general policies, criteria, processes or procedures as they relate to the type of conduct of which Dr Dutt complains, but the evidence is of limited relevance.
101 Counsel for Dr Dutt did attempt to lead some evidence which would have suggested that Dr Dutt’s race was a matter of discussion in the workplace, and was something the people whose conduct Dr Dutt complained of had in their minds: he questioned one witness, and attempted to cross-examine another, in relation to comments each of them heard in June 2000. But that evidence was not relevant to the period covered by this complaint. Even if it had been, it was in any event hearsay of a type which was, in the circumstances, quite unreliable.
102 Another suggestion of this type of evidence arose in Dr Dutt’s correspondence and evidence. Dr Dutt referred to the employment in and departure from the Imaging Department of two senior staff radiologists who were Chinese. He said that they had made complaints regarding racially-based conduct in the Department. There was however no evidence of this other than Dr Dutt’s allegations, and certainly no evidence on which we could base any inference that race was ground for the treatment of Dr Dutt.
103 There is no other evidence which leads to an understanding of the kind of workplace Dr Dutt was in with regard to considerations of race, and the kind of people Dr Dutt worked with, having regard to considerations of race. Thus, but for one allegation, Dr Dutt is unable to establish that his race was a ground for any less favourable treatment by the CCAHS.
104 The one allegation on which we do find that there was less favourable treatment on the ground of race is an allegation where reference to race was explicit: Dr Sparke’s comments to Dr Dutt. While that finding might in some circumstances support an inference that Dr Dutt’s race was a ground for Dr Sparke’s other treatment of Dr Dutt, we consider and reject this in this matter.
105 In light of the view we take – that no evidence on which we could base any inference that race was ground for the treatment of Dr Dutt – it might be, strictly speaking, unnecessary to proceed to findings of fact in relation to every allegation of race discrimination. We do however proceed to make findings, for these reasons: Dr Dutt worked at Gosford Hospital for some 15 years at the end of his professional working life, the parties and the Tribunal have invested considerable resources in the inquiry into incidents which, in the end, have characterised his time there, and the findings do show that Dr Dutt had reason, on occasion, to complain that he was treated unfairly.
FINDINGS OF FACT: RACE DISCRIMINATION
106 There is considerable common ground between the parties in relation to many of the circumstances. Although we do not detail all the evidence on each issue, we have taken all the evidence into account in arriving at these findings on contested facts. In these findings we refer directly to only so much of the evidence as we feel is necessary to make clear the basis of our findings on each of Dr Dutt’s allegations.
107 Unless it is necessary in the circumstances to make clear a distinction, a reference in this decision to Dr Dutt’s ‘race’ is a reference to Dr Dutt’s colour, nationality, descent and ethnic and national origin (s4 ADA), and to any characteristic that appertains generally or is generally imputed to persons of Dr Dutt’s race (s7(2) ADA).
108 The allegation that Dr Sparke made comments with explicit reference to Dr Dutt’s race is different in type from all Dr Dutt’s other allegations. It is the only allegation for which Dr Dutt can rely on direct evidence rather than inference. We deal with it first.
109 Dr Sparke was the Medical Director. This incident is alleged to have occurred on 4 April 1997.
1. Allegation: The Medical Director saying to the Applicant "You bloody Indian, you bloody black. I will sack you and I know how to do it."
Did the conduct occur?
110 On the same day Dr Dutt wrote to Dr de Carvalho, the Acting Chief Executive Officer of the CCAHS, alleging that Dr Sparke had said these words to him.
111 Dr Sparke wrote to Dr de Carvalho on 9 April saying, relevantly, “I take great exception to the comments contained in Dr Dutt’s letter. I feel that certain statements are defamatory”. He attached a “report detailing the events of the morning of Friday 4 April 1997” in which he said, relevantly, “I categorically deny any aggressive behaviour on my part. I deny any use of threatening words and I deny any use of racially discriminatory language”. Dr Sparke does not appear to explicitly deny, in a contemporaneous letter and report, that he said the words alleged. Later, in his written statement to the Tribunal and under cross-examination however, he did deny making the remark; in his evidence he said that the allegation by Dr Dutt is a fabrication.
112 In his evidence Dr Dutt elaborated on his allegation, saying that Dr Sparke spoke in an “aggressive” way. He described Dr Sparke as having “not a soft voice . . . [a] sort of subdued voice”. He said Dr Sparke “raised his voice, yes, more angry”. Dr Dutt denies that he raised his voice. In cross-examination Dr Dutt repeated that Dr Sparke normally speaks in a voice which “is below normal [level]”, that Dr Sparke’s voice was raised in the conversation on 4 April, and that he, Dr Dutt, did not raise his voice.
113 Ms Gray recalls Dr Dutt talking “very loudly”. While she could see the doctors speaking, and could hear the sound of the conversation, she could understand none of the conversation but for one comment of Dr Dutt’s. She says that Dr Sparke was speaking very quietly.
114 Similarly Ms LS Davis recalls Dr Dutt talking “very loudly and forcefully”. She too could see the doctors speaking, and could hear the sound of the conversation, but could understand none of the conversation but for a comment of Dr Dutt’s, different from that heard by Ms Gray. She says that Dr Sparke was speaking “in a normal speaking voice”. She heard nothing of what Dr Sparke said.
115 Ms Foster also recalls that “the level of [Dr Dutt’s] voice was very high”. She could see Dr Dutt speaking to Dr Sparke, but could understand none of what he said but for the same comment of Dr Dutt’s heard by Ms Davis. She says that she did not hear Dr Sparke speak at all.
116 None of these witnesses heard the words that passed between Dr Dutt and Dr Sparke. These witnesses’s accounts of the exchange between the two doctors do not assist in our making finding as to what was said.
117 In the days after the incident of 4 April the CCAHS investigated Dr Dutt’s allegation. In the written account of those investigations both Dr Dutt and Dr Sparke were consistent in their respective accounts of the exchange. We heard no oral evidence concerning the conduct of that investigation. The written account of the investigation does not assist in our making finding as to what was said.
118 The investigation included written accounts of the recollections of staff concerning the exchange between the doctors. We have no evidence concerning the manner in which the accounts were obtained. Two of the staff referred to gave evidence to the Tribunal and their evidence was not entirely consistent with the written account. The written accounts do not assist in our making finding as to what was said.
119 The CCAHS submits that Dr Sparke’s evidence denying that he said the words alleged should be preferred over Dr Dutt’s evidence that the words were said. The CCAHS relies on what it says are conclusions as to credit that we can draw from evidence concerning who was speaking loudly and who was not.
120 We agree that despite Dr Dutt’s evidence it is likely that he did raise his own voice. Questions put by Dr Dutt’s counsel to witnesses throughout the hearing were premised on the proposition that Dr Dutt raises his voice in normal conversation. The Tribunal observed his manner of speaking in the witness box over a period of some four to five days. The Tribunal accepts the consistent evidence that Dr Dutt commonly raises his voice in discussion. We are satisfied that it is likely that Dr Dutt did raise his voice during a conversation such as that he describes having had with Dr Sparke, particularly as his own evidence is that it caused him distress at the time. We are satisfied that at times during the exchange Dr Sparke spoke forcefully, in a stronger voice than his more usually subdued one.
121 These findings do not in our view affect the credit which attaches to the evidence which was given. Both witnesses have reason to downplay the extent to which they showed their anger during the exchange. The difference between their account of their manner of speaking and our finding on the issue is not, in the circumstances, such as to raise real doubt about their honesty.
122 It is the case, in our view, that Dr Dutt has exaggerated aspects of his various claims. However, based on our observation of Dr Dutt over a period of days in the witness box, and on an assessment of all the evidence, we consider it to be a personal characteristic of Dr Dutt to give a more dramatic account of events than other evidence suggests is warranted. Further we can see some explanation for his exaggeration in the stress and exasperation that Dr Dutt obviously felt as a result of his perception of unfair treatment. At no stage did we form the view that Dr Dutt fabricated evidence in relation to his account of a large number of events over many years. While many of Dr Dutt’s allegations cannot be substantiated on the evidence, and he and other witnesses at times have very different interpretations of events, Dr Sparke’s denial of the comments is the only occasion on which there is evidence at direct odds with an account of an event given by Dr Dutt.
123 Dr Dutt’s complaints of race discrimination cover a period of many years. He recounts numerous acts, interactions, exchanges which he says occurred on the ground of his race. Dr Dutt made numerous complaints over the years regarding people’s conduct towards him. There were many occasions over the years when he had private conversations with people about whose conduct towards him he is aggrieved. There were people other than Dr Sparke about whose conduct Dr Dutt had a grievance. There were many opportunities for Dr Dutt to make such an allegation. Yet he makes no allegation that anyone on any other occasion said anything with explicit racial content. The only allegation of that sort was against Dr Sparke on this occasion. Dr Dutt’s complaint was made in explicit terms on the same day, and he has been completely consistent in his account since that time.
124 The evidence begs the question why, if he were to fabricate an allegation of a racial slur, he would do so only once, on this occasion, and not otherwise. There is in our view considerable evidence which is inconsistent with a suggestion that Dr Dutt’s account is a fabrication.
125 In all the circumstances it is unlikely, in our view, that Dr Dutt would have fabricated such a comment.
126 A further attack on Dr Dutt’s credit was made in relation to his recollection of an investigation and report in 1991 by a Mr Cahill in response to allegations and complaints made by Dr Dutt. The overall effect of that report was not supportive of Dr Dutt’s allegations, and a recommendation in the report was to the effect that Dr Dutt concede that there had been no discriminatory conduct. In light of Dr Dutt’s extensive and detailed recall of events, about most of which there was general agreement between the parties, we agree that it is noteworthy that Dr Dutt’s recall of that investigation was so uncertain. However his unwillingness to readily recall that investigation and report does not in our view, in the circumstances, affect our assessment of Dr Dutt as a generally reliable witness in his recall of conversations and occurrences to which he was a party. Rather, it is in our view indicative of Dr Dutt’s general defensiveness which we noted above.
127 A consideration which supports to some degree the possibility that Dr Sparke did not make the alleged comment is that Dr Sparke’s good character was not challenged, despite his having put it in issue in his evidence, and Dr de Carvalho’s having volunteered evidence of it. At the same time however, we do not consider Dr Sparke’s unchallenged good character to be determinative of the issues of whether he said the words alleged, and whether he would deny saying them.
128 On the evidence we are satisfied that Dr Sparke made the comments attributed to him by Dr Dutt.
The ground for the conduct
129 Because of the explicitly race-based nature of the conduct it is not to necessary inquire into grounds for the conduct. While there may have been more than one ground, a ground for Dr Sparke’s having treated Dr Dutt as he did was Dr Dutt’s race.
Less favourable treatment?
130 Was his making the comment “less favourable treatment” of Dr Dutt? The material circumstances for purposes of identifying an actual comparator include that the comments were made to a person who was in dispute with Dr Sparke, who had not complied with a direction given by Dr Sparke as a superior, who had a long history of complaints against Dr Sparke, and with whom Dr Sparke had strained relations and deliberately little contact. There is no actual comparator. The comparison is necessarily hypothetical.
131 One of many hypothetical comparators not of Dr Dutt’s race is a person who is, as Dr Sparke is himself, white skinned and of an English speaking background. We can reasonably assume that Dr Sparke would not have made an intolerant race-based remark to such a person. It is likely that he would have treated such a person more favourably in the same circumstances than he treated Dr Dutt.
Findings
132 We find that Dr Sparke’s comment was less favourable treatment on the ground of Dr Dutt’s race and was therefore discrimination within the meaning of s7(1)(a) of the ADA.
133 The discrimination was conduct of Dr Dutt’s superior, and took place in the course of his employment. We find that the discrimination was in the terms or conditions of employment which the CCAHS afforded Dr Dutt (s8(2)(a)), and was thereby unlawful conduct.
Finding as a basis for inference
134 The finding as to Dr Sparke’s less favourable treatment of Dr Dutt on the ground of race is available to the Tribunal as evidence on which an inference might be based that Dr Dutt’s race was a ground for other conduct of Dr Sparke of which Dr Dutt complains.
135 In our view, however, Dr Sparke’s single comment is an insufficient basis for an inference that Dr Dutt’s race was more probably than not a ground for Dr Sparke’s other conduct in relation to Dr Dutt. It is relevant to our view that Dr Sparke’s dealings with Dr Dutt took place over 12 years on a number of matters, and Dr Dutt does not complain of every decision which Dr Sparke took, or of every dealing they had. Dr Sparke made the remark in particular circumstances, where he was angry with Dr Dutt and was faced with Dr Dutt’s apparent refusal to comply with a direction. This is not to excuse Dr Sparke’s making the remark, but to explain why in our view we cannot infer that Dr Dutt’s race was more probably than not a ground for Dr Sparke’s other conduct towards Dr Dutt.
Racial slurs, name calling, derogatory statements concerning the abilities of minority members are all, of course, relevant to a case of discrimination based on circumstantial evidence. (Vizkelety, B., Proving Discrimination in Canada , Carswell, Toronto, 1987 at pp 145-146)
Evidence of a discriminatory motive, while not necessary to prove discrimination, will be crucial evidence. As the EAT said in Elahi v Bristol and Weston Health Authority [EAT 138/89]:
(in Palmer Moon and Cox at p37).
the existence of racial prejudice . . . is highly relevant to an issue as to whether there was discriminatory conduct. It is self-evident that if there is such prejudice, discriminatory conduct is much more likely to have occurred.
136 We turn now to the remaining allegations.
Did the conduct occur?
2. Allegation: The non-appointment of the Applicant to the position of Acting Head of the Medical Imaging Department notwithstanding a recommendation of a Review Committee.
137 Dr Dutt alleges that the CCAHS failed in 1987 to act on a recommendation by Drs Hunt and Barton that:
138 The CCAHS agrees that Dr Dutt was not appointed as Acting Head of Department as recommended.
Dr Dutt should be made “Acting” Head of the Department for a trial period of six months.
Less favourable treatment?
139 Was the non-appointment of Dr Dutt “less favourable treatment”? There was no competitor for the position with whom Dr Dutt’s non-appointment can be compared, and there is no evidence of an appointment process which could be comparable. Subsequent appointments to the position were not “in the same circumstances”: they were appointments from a competitive field, not the appointment of an incumbent full-time staff specialist. The comparison must therefore be hypothetical.
140 To know whether a person not of Dr Dutt’s race would have been treated differently in the same circumstances, we ask whether Dr Dutt’s race was a ground of his actual treatment.
141 There is no direct evidence of that being so. There is direct evidence of other possible grounds, such as the concerns regarding Dr Dutt’s competency, which was pursued for the CCAHS in cross-examination of Dr Dutt. A memo from Mr Boyce dated 25 November 1988 raised concerns about Dr Dutt’s practices in X-Ray reporting and Ultrasound reporting; Dr Dutt strongly defended himself in a reply dated 1 December 1988.
142 Mr Boyce was not called to give evidence. We heard no evidence from the authors of the report Doctors Hunt and Barton, nor from any member of the CCAHS Board at the time.
143 We are unable to be satisfied on the evidence that concerns regarding Dr Dutt’s competence were more probably than not a ground for the non-appointment. It is a plausible ground which we can neither accept nor dismiss.
144 In the absence of direct evidence of race being a ground we can rely only on inference. There is, as we said above, no evidence on which we can base an inference that Dr Dutt’s race was a reason for his non-appointment in 1987. There is nothing in the evidence concerning the circumstances of the recommendation to appoint, and the failure to appoint, relevant to an inference that Dr Dutt’s race was a ground for the non-appointment.
Findings
145 We find that the decision to not appoint Dr Dutt occurred. We find that there was at least one possible ground other than race for the non-appointment. In the absence of evidence from which we can infer that Dr Dutt’s race was a ground for the non-appointment, we are unable to find that he was treated less favourably than in the same circumstances a person not of his race would have been. Accordingly this allegation of unlawful discrimination is not substantiated.
Did the conduct occur?
3. Allegation: The refusal to convene the Organ Imaging Sub-Committee of which the Applicant was permanent secretary.
146 The report of 15 June 1987 by Doctors Hunt and Barton recommended that:
147 Dr Dutt says that the Sub-Committee did not meet until November 1989. The CCAHS agrees that in November 1989 it had not met for two and a half years. The allegation is not that the Sub-Committee did not meet, but that that Dr Dutt’s requests for it to convene were refused.
The Organ Imaging Committee . . . should continue to function . . .
Dr Dutt should be made permanent secretary . . .
148 Dr Dutt alleged in his pleadings that “over a number of months [he] agitated regularly for this sub-committee to meet”, but there is no evidence of his having done so. The CCAHS does not address directly the issue of there being a request and a refusal. In a letter dated 6 November 1989 Dr Kennedy, Medical Superintendent of the CCAHS, states that “[t]he reason that no meeting has been called is that the role and relationship of yourself to the other members was never satisfactorily resolved . . .”, and there was no other evidence led in relation to the Sub-Committee’s history.
149 Dr Kennedy died before these proceedings commenced and so it has not been possible to clarify the meaning of what he wrote by way of explanation for the Sub-Committee’s not meeting.
150 We cannot be satisfied that Dr Dutt made the requests which, in his pleadings, he says he made.
Finding
151 We are unable to find that the refusal to convene the Sub-Committee occurred. Accordingly this allegation of unlawful discrimination is not substantiated.
Did the conduct occur?
4. Allegation: Not allowing the Applicant to sign off on CT reports and to have provisional reports prepared by the Applicant checked and signed by private practitioners.
152 Dr Dutt alleges that he was directed not to sign CT reports as he had not been accredited, and that he was directed to have countersigned by a private radiologist any reports he prepared in an emergency.
153 The CCAHS agrees that Dr Dutt was given a direction to this general effect in a letter to Dr Dutt from Dr Sparke, Director of Medical Services, dated 8 August 1990, and that Dr Dutt was required to attend Royal North Shore Hospital regularly for an unusually long period – approximately two years – before being accredited.
154 The treatment of Dr Dutt in relation to CT reporting was first that he was required to be accredited, and secondly that there was a lengthy delay before he was accredited.
Less favourable treatment?
155 Were the imposition of the requirement and the lengthy delay “less favourable treatment”? In relation to the accreditation requirement there were at least two actual comparators, Doctors Mackley and Anderson, who were staff specialists.
156 It was put to Dr Sparke that “the accreditation procedure . . . only ever really affected Dr Dutt?”, to which he answered “Yes”. It was then put to Dr Sparke that the accreditation procedure “was designed only ever really to affect Dr Dutt?” to which he said “maybe I answered ‘yes’ earlier too quickly, no, that’s not correct. The accreditation procedure was to ensure that we had an appropriate level of reporting in CT”.
157 We accept Dr Sparke’s uncontested evidence that “the Health Service felt it was important that we should accredit any of our members who were providing services in CT. So that was the reason behind [the accreditation procedure]”.
158 The imposition of the requirement of accreditation had the same direct effect on Dr Dutt as it did on other people not of his race in the same circumstances. It was not less favourable treatment within the meaning of s7(1)(a) of the ADA.
159 In relation to the delay in accreditation there was at least one comparator, Dr Milne, who engaged in CT reporting at the Hospital at the same time. It is clear from the evidence of Dr Dutt and Dr Sparke that Dr Milne did not go through the same process of training and supervised report writing towards accreditation. There is no evidence of what process he went through, if any; it is open on the evidence that he was merely ‘accredited’ on some basis without any process, perhaps on the basis of his experience. It appears from Dr Sparke’s uncontested evidence that there was no documented procedure in place for accreditation: in the absence of any external guidance, the CCAHS relied on “peer assessment”.
160 We are satisfied that in accrediting Dr Dutt as it did the CCAHS treated him less favourably than it treated someone not of his race – Dr Milne – in the same circumstances.
On the ground of race?
161 Dr Dutt alleges that a ground for less favourable treatment was his race. That is possible. Certainly the absence of any objective criteria for assessment, and the reliance on unguided “peer assessment”, increases the possibility that subjective considerations such as a person’s race were a ground for a decision.
162 There is however no evidence on which we can base an inference that Dr Dutt’s race was probably a ground for the treatment. There are as well other possible grounds for the less favourable treatment. One is, again, concerns regarding Dr Dutt’s competence.
163 It is not contested that the CCAHS relied on advice from the senior medical practitioners at Royal North Shore and Gosford Hospitals, Dr Hunt and Dr Melville respectively, who declined to endorse Dr Dutt’s capability. Dr Sparke’s account of his conversations with Doctors Hunt and Melville is that they said that Dr Dutt was “not up to scratch”.
164 We heard no evidence from Doctors Hunt and Melville. Dr Dutt did not contest that Doctor Melville held that view as to his competence. As for Dr Hunt, It was suggested to Dr Sparke that Dr Hunt had not in fact commented on Dr Dutt’s competence but had volunteered his own inability to judge competence; Dr Sparke denied that that was what Dr Hunt said and the issue was taken no further in evidence.
165 On the evidence, concern regarding Dr Dutt’s competence is more probably than not a ground for the delay in accrediting Dr Dutt.
166 Another possible ground is an inadequate assessment of Dr Dutt’s competence carried out by Doctors Hunt and Melville, and an inadequate accreditation process overall. Dr Dutt was permitted to engage in unsupervised CT reporting at Gosford Hospital when a newly appointed Director of Medical Imaging, Dr Yip, intervened and advocated for Dr Dutt’s ability. Dr Sparke says that there was a workload imperative behind Dr Yip’s actions, but conceded that at the time “there was certainly no evidence that [Dr Dutt] was not capable of providing the service”.
Findings
167 We find that the CCAHS required Dr Dutt to be accredited, but that imposing that requirement was not less favourable treatment of Dr Dutt. We find that the CCAHS delayed in accrediting Dr Dutt and that that delay was less favourable treatment of Dr Dutt. We find there was at least one probable and one possible ground other than race for the less favourable treatment. There is no evidence, and we are unable to infer, that Dr Dutt’s race was a ground for the less favourable treatment. Accordingly this allegation of unlawful discrimination is not substantiated.
221 The comparison is hypothetical: would the CCAHS, in the same circumstances, have undertaken the re-arrangement without notice to or consultation with, and during the absence of, a person not of Dr Dutt’s race?
222 There is no direct evidence that Dr Dutt’s race was a reason for the re-arrangement being done as it was. Nor is there evidence on which we could base an inference that Dr Dutt’s race was more probably than not a ground.
223 There are other possible grounds. The CCAHS in its submissions says that that the manner in which it went about the re-arrangement was an error of judgement. That is not a ground for a decision but an observation on its quality and, in the circumstances in our view, an inadequate one. The manner in which Dr Dutt was treated in the re-arrangement of the reporting room can be fairly described as considerably more serious than an error of judgment or, as the Internal Audit report referred to it as “unfortunate”.
224 Dr Sparke and Dr Davis offered reasons for the way the re-arrangement was done. It was clear in their giving evidence that neither was comfortable or confident that their explanations were sufficient. Dr Davis did not persuade us on the urgent need to re-arrange the Department. Neither Doctor persuaded us on the shortness of time available for planning, or that Dr Dutt’s absence on leave before the actual re-arrangement either prevented any prior consultation or didn’t warrant a short delay. In our view it was disingenuous of Dr Sparke to state in evidence: “It is unfortunate that Dr Dutt was not able to be involved in the improvements. He was on a period of extended leave”.
225 It is probable that a ground for the re-arrangement happening as it did was, as Dr Sparke said in evidence, an expectation that Dr Dutt would react badly to the suggested changes, and the antipathy felt towards Dr Dutt which led not necessarily to any malice towards, but rather a disregard for, Dr Dutt. Dr Sparke agreed with the proposition from Dr Dutt’s counsel that the failure to consult Dr Dutt reflected the nature of the relationships among himself, Dr Dutt and Dr Davis:
226 We have described above how Dr Davis deliberately avoided dealing directly with him. Dr Davis quite literally had no answer when it was put to him that, considering Dr Dutt’s seniority in the Department and his longstanding occupation of the reporting room, he should have been consulted on the re-arrangement.
Q. I suggest to you it [the lack of consultation] was an outgrowth of how Dr Dutt reacted and you reacted to him . . . how he and you and Dr Dutt fitted together in sort of the matrix that had built up over the years?
A. Yes I think there is a component of that.
Findings
227 We find that the CCAHS did investigate Dr Dutt’s complaints regarding the manner in which the Department was re-arranged. We find the Department was re-arranged without notice to Dr Dutt. We find that there were probable grounds other than Dr Dutt’s race for that conduct. In the absence of evidence on which we can infer that Dr Dutt’s race was a ground for the re-arrangement being done as it was, we are unable to find that he was treated less favourably than in the same circumstances a person not of his race would have been. Accordingly this allegation of unlawful discrimination is not substantiated.
Did the conduct occur?
12. Allegation: Not interviewed for the position of director of the Medical Imaging Department.
228 This allegation arose in the course of Dr Dutt’s evidence. Dr Dutt alleges that he applied for the position of Director of the Medical Imaging Department in 1995, but was not interviewed. The CCAHS agrees that Dr Dutt was not interviewed.
Less favourable treatment on the ground of race?
229 Whether there is an actual comparator or there needs to be a hypothetical comparison, we can look ahead to the ground for this treatment of Dr Dutt, and say that it is probable that the only ground for the treatment is that the relevant decision makers did not receive the application.
230 The relevant Minutes of the Credential Sub-Committee and of the Medical Appointments Advisory Committee make no reference to an application from Dr Dutt. Mr O’Malley, Director Human Resources for the CCAHS gave evidence that no record could be located of an application from Dr Dutt.
231 Dr Dutt’s evidence was that he hand-delivered his application to the Hospital. Questioning of Mr O’Malley pursued the possibility that the application had been lost between its being handed in and reaching the relevant committees. Dr Dutt has not alleged that his application was deliberately lost or overlooked – he seems to have been unaware that his application was not before the committees.
Finding
232 We find that the CCAHS did not interview Dr Dutt for the position. We find that they did not do so on the ground that, at the time decisions were made as to which applicants were to be interviewed, the CCAHS was unaware that Dr Dutt had applied. Accordingly this allegation of unlawful discrimination is not substantiated.
CONSIDERATIONS IN PROVING VICTIMISATION
233 Dr Dutt must show that the CCAHS subjected him to a detriment, and that it did so “on the ground” of Dr Dutt doing or intending to do, or it being suspected that he has done or intends to do, any of the acts prescribed in s50(1)(a)-(d) ADA:
234 If an applicant has no direct evidence that their conduct under s50(1) was a ground for their being subjected to a detriment, they can rely only on inference.
(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
235 The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an applicant did or was suspected of doing one of the acts in s50(1), and whether the respondent did anything which caused detriment to the applicant. If the answer to both is ‘yes’, the Tribunal will then ask whether there is a causal link between the two: did respondent do that thing on the ground that the applicant did or was suspected of doing one of the acts in s50(1)?
“on the ground”
236 There is in our view an issue to be resolved as to how the term, “on the ground” should be read in s50(1). The approach taken by the Tribunal has been to ask whether the applicant’s assertion of a right under the ADA was a ‘real’ or ‘operative’ ground (see D v Berkeley Challenge at para 103, and Sivananthan at para 40, both citing Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, at pp 105-6).
237 In University of Ballarat v Bridges & Anor (1995) EOC 92-681 Justice Ormiston of the Victorian Supreme Court spent some time reviewing authorities and analysing the term “on the ground of” in relation to direct discrimination. He said at p78,175, that
238 His Honour quoted Deane and Gaudron JJ in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 saying, at p 176: “Genuinely assigned reasons for an act may, in fact, mask the true basis for that act or decision” (Ormiston J’s emphasis).
it is not sufficient merely to find a causal relationship between and alleged ‘discriminatory’ act and the ultimate act or decision which is claimed to constitute unlawful discrimination . . . ‘ground’ or ‘reason’ connote a basis which actuates or moves a person to decide a matter or to act in a particular way . . .”
239 It seems that in describing the Tribunal’s exercise as an inquiry to find a ‘real’ or ‘operative’ ground, or true basis, for conduct, the authorities do no more than emphasise the need for the applicant to identify a ground which has a direct causal link to the conduct: “a proximate bearing . . . a causally operative effect” (Street CJ in Director General of Education v Breen at page 75,429), and to distinguish the reason for conduct – the ‘real’ ground – from the intention or motive for the conduct: cf Browne-Wilkinson VC in James v Eastleigh Council cited by Ormiston J in University of Ballarat.
240 In summary, once a ground for conduct is identified, that ground is a real or operative ground, and the need to describe it as such can be seen as redundant.
241 A further issue is how, in the absence of s4A, to deal with a situation when there is more than one ground for the detriment. In Waterhouse, after discussing the need for the Tribunal to find “the real ground” for conduct (p106A-F), Clarke JA anticipated an occasion when the Tribunal “decides that there are two grounds for the action or decision one which does and one which does not fall within [the proscription of the ADA]”. In that circumstance, he said, a contravention of the Act “will have been made out. That is because [the conduct] was accorded on the ground, amongst others, of [a proscribed consideration]”.
242 His Honour accepted that each was an ‘operative’ and ‘real’ ground for the conduct, in that there was direct causal link, and that for a finding of a breach of the ADA it was sufficient that only one of the grounds was unlawful under the Act. This reasoning seems to result in very nearly if not the same effect as s4A.
243 We do not therefore, in this decision, ask whether Dr Dutt’s allegation of race discrimination was a ‘real’ or ‘operative’ ground, but only whether it was ‘a ground’, for any detriment.
Detriment
244 The term ‘detriment’ means “loss, damage or injury” to the applicant (Sivananthan at para 40; Shaikh at 78,986), and that “the applicant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter” (Bogie v The University of Western Sydney EOC 92-313 (1990) at 78,146).
FINDINGS OF FACT: VICTIMISATION
Did Dr Dutt do one of the acts in s50(1)?
245 It is agreed that Dr Dutt did an act referred to in s50(1)(c): on 4 April 1997 he sent by fax to Dr de Carvalho a letter complaining of Dr Sparke’s comments and alleging “racial discrimination”.
246 The issue of victimisation of Dr Dutt arises therefore only in relation to conduct after 4 April 1997 – the causal connection could not be established for conduct before that date – and before 20 September 1999 which is the last date of complaint to the Anti-Discrimination Board.
Did the CCAHS do anything which caused detriment?
13. Allegation: Refusing the Applicant access to documentation requested under Freedom of Information legislation
247 Did the CCAHS, after 4 April 1997, refuse Dr Dutt access to documentation requested under Freedom of Information legislation?
248 The “documentation” to which Dr Dutt’s complaint of victimisation relates is a report of the Audit Branch of the Department of Health, dated December 1998. This report is of an investigation which was initiated because several allegations Dr Dutt had made, of irregularities in financial practices in the Imaging Department, had been referred to the Department of Health.
249 Dr Dutt sought a copy of the report from the Department of Health under the Freedom of Information Act. A copy provided to Dr Dutt had large sections deleted , and the relevant part of a letter to Dr Dutt dated 23 June 1999 from the Department of Health says: “the Department is unable to release a full copy of the report to you”.
250 The Department of Health, and not the CCAHS, is the appropriate entity against which any complaint about refusal of access should be made. Dr Sparke’s evidence to this effect was not contested: he said “That report belonged to the Health Department and I understand the request would have gone to the Health Department rather than the Area Health Service . . . So it didn’t come to me, I have no involvement in that”. It is clear from the document that the report was commissioned by and provided to the Department.
251 The Department of Health is not a party to these proceedings. We can make no finding about their conduct. To the extent that Dr Dutt’s complaint of victimisation relies on an allegation in these proceedings concerning the conduct of the Department of Health, it is misconceived.
252 The report did recommend that “the investigation report be issued to the Chief Executive Officer, Central Coast Area Health Service (CCAHS) for his consideration and submission to the next meeting of the Area Health Board”.
253 There is no evidence of the specific terms of the requests made by Dr Dutt to the CCAHS under the Freedom of InformationAct, although Dr Sparke’s uncontested evidence is that none extended to the report. There is no evidence of any refusal by the CCAHS. There is no evidence that the CCAHS was in any way involved in the decision by the Department of Health to not release the full report to Dr Dutt.
Finding
254 We find that the CCAHS did not refuse the applicant access to documentation as alleged. It is unnecessary therefore to consider the issues of detriment and causation. Accordingly we find that this allegation of victimisation is not substantiated.
255 This is the ‘victimisation’ aspect of the race discrimination complaint above: ‘Claiming there were significant errors in the Applicant's work’. It arises because the conduct complained of occurred after 4 April 1997 at which time the CCAHS was aware of Dr Dutt’s having alleged race discrimination.
14. Allegation: Using incomplete documents to demonstrate his poor clinical performance
Did CCAHS do anything which caused detriment?
256 Did the CCAHS, after 4 April 1997, use incomplete documents to demonstrate Dr Dutt’s poor clinical performance?
257 We repeat here our findings above in relation to the dictation reports – para 203. It is not possible for us to say whether the documents provided to Dr Sparke by Ms Huntley and Mr Leung and relied on by Dr Sparke as a basis for assessing Dr Dutt’s performance, were “incomplete”, that is, were only drafts.
Finding
258 As we are unable to find that the CCAHS did the conduct alleged, this allegation of victimisation is not substantiated. It is unnecessary therefore to consider the issues of detriment and causation.
Did CCAHS do anything which caused detriment?
15. Allegation: Subjecting the Applicant to disciplinary actions, threats of termination of employment and prohibition on performing professional work
259 Did the CCAHS, between 4 April 1997 and 9 September 1999, subject Dr Dutt to
260 As to the first of these allegations – disciplinary warnings – the CCAHS agrees that the conduct occurred: that Dr Dutt was made the subject of disciplinary warnings on 4 April 1997 and 7 June 1999.
i. disciplinary actions
ii. threats of termination of employment and
iii. prohibition on performing professional work?
Disciplinary warning April 1997
261 On 4 April 1997 Dr Sparke gave a disciplinary warning to Dr Dutt in a letter that precipitated Dr Dutt’s letter of the same date in which he alleged race discrimination. The warning therefore preceded by some hours any knowledge Dr Sparke had of Dr Dutt’s actual allegation of race discrimination.
262 It is not necessary that a person has actually done one of the acts in s50(1): it is sufficient if it suspected that they intend to do so. The disciplinary warning of 4 April followed the conversation in which Dr Sparke made the race-based comment to Dr Dutt: it is reasonable to infer from the circumstances, which include Dr Sparke’s own awareness of Dr Dutt’s readiness to complain of others’ conduct, that Dr Sparke would have suspected that Dr Dutt would respond to the race-based comments with an allegation of race discrimination of some sort. The disciplinary warning on 4 April 1997 occurred at a time which, on the facts as we have found them, makes it an act done to Dr Dutt by CCAHS within s50(1).
Detriment and causation
263 We have heard Dr Dutt’s own evidence that he was distressed by the warning. That is not detriment within the meaning of the ADA, and there is no evidence of detriment. We are therefore unable to find that Dr Dutt was subjected to detriment. If that distress was detriment, there is no evidence, nor any evidence on which we can reasonably infer, that the suspicion that Dr Dutt would allege race discrimination was a ground for the conduct which caused the detriment.
264 We are satisfied however that Dr Dutt’s apparent refusal to comply with the direction of a superior was probably a ground for Dr Dutt’s being subjected to any detriment. If the warning was unreasonably given, as Dr Dutt maintains it was, it might suggest that there was another ground for its issue, but as we said above, there is no evidence of that.
Finding
265 We find that the CCAHS did issue a warning on 4 April 1997. We are not satisfied that Dr Dutt suffered detriment. If the distress felt by Dr Dutt was detriment, we are unable to find or infer that a suspicion that he would allege race discrimination was a ground for the conduct which caused the detriment. Accordingly this allegation of victimisation is not substantiated.
Disciplinary warning June 1999: detriment and causation
266 Through Dr Sparke, the CCAHS gave a disciplinary warning on 7 June 1999. We are not satisfied that Dr Dutt suffered any consequential detriment within the meaning of the ADA. The warning of June 1999 was withdrawn by letter dated 23 July 1999 after representations from Dr Dutt’s professional association. There is no other evidence of detriment.
267 If Dr Dutt’s distress at the imposition of a warning was detriment, there is no direct evidence, nor evidence on which we can reasonably infer, that Dr Dutt’s allegation of race discrimination was a ground for the conduct which caused the detriment. There is however evidence that Dr Dutt’s apparent refusal to sign an attendance register was possibly such a ground.
Finding
268 We find that the CCAHS did issue a warning on 7 June 1999. We are not satisfied that Dr Dutt suffered detriment. If the distress felt by Dr Dutt was detriment, we are unable to find or infer his allegation of race discrimination was a ground for the conduct which caused detriment. Accordingly this allegation of victimisation is not substantiated.
Threats of termination of employment
269 There is evidence that after 4 April 1997 Dr Dutt was advised that termination of employment was a possible consequence of the disciplinary procedure. There is however no evidence of this conduct causing Dr Dutt any detriment within the meaning of the ADA. Accordingly we find that this allegation of victimisation against the CCAHS is not substantiated.
Prohibition on performing professional work
270 As to the prohibition on performing professional work, there is no evidence that after 4 April 1997 Dr Dutt was prohibited from performing professional work. We are unable to find that the conduct occurred as alleged. It is unnecessary therefore to consider the issues of detriment and causation. Accordingly we find that this allegation of victimisation against the CCAHS is not substantiated.
Did the CCAHS do anything which caused detriment?
16. Allegation: Denying the Applicant basic work items such as letterhead and stationery.
271 There is evidence that Dr Dutt did not receive what he requested in the quantities he requested, and that reasons he was given for this at the time may have been spurious. We are not satisfied on the evidence, however, that the terms on which Dr Dutt was advised that he had access to letterhead and stationery can be characterised as a denial of these items.
272 If what happened was a denial, it caused Dr Dutt some inconvenience. We are not satisfied that he suffered detriment within the meaning of the ADA. If that inconvenience was detriment, there is no direct evidence, nor any evidence on which we can reasonably base an inference, that Dr Dutt’s allegation of race discrimination was a ground for the conduct which caused the detriment. There is evidence that an opinion among staff that Dr Dutt’s use of stationery was excessive and inappropriate, was such a ground.
Finding
273 We are unable to find that Dr Dutt was not denied basic work items as alleged. If the circumstances do constitute a denial, we are not satisfied that Dr Dutt suffered detriment. If the inconvenience felt by Dr Dutt was detriment, we are unable to find or infer that a suspicion that he would allege race discrimination was a ground for his being subjected to the detriment. Accordingly this allegation of victimisation is not substantiated.
274 Accordingly we find that this allegation of victimisation against the CCAHS is not substantiated.
What did the CCAHS do?
17. Allegation: Requiring the Applicant to sign an attendance book when it is not required to be done by any other full time staff specialist in the public health system.
275 The CCAHS agrees that Dr Dutt was required to sign an attendance book. The requirement was imposed in December 1998 and Dr Sparke issued Dr Dutt with the formal warning in June 1999 for his failure to sign the register.
276 (We note that the allegation is phrased in ‘comparative’ terms, as for a complaint of direct discrimination. Relevantly to a complaint of race discrimination, we agree with the CCAHS that Dr Dutt was treated in the same way as comparable staff in the circumstances. Although Dr Dutt was the only full time staff specialist in the Department there is no evidence to suggest that any other full time staff specialist not of Dr Dutt’s race would have been treated more favourably.)
Detriment and causation
277 The requirement did lead, through Dr Dutt’s apparent failure to comply with it, to a formal disciplinary warning being issued, but it was subsequently withdrawn. Requiring Dr Dutt to sign the attendance register did not subject Dr Dutt to detriment within the meaning of the ADA. If it did then there is no direct evidence, nor any evidence on which we can reasonably base an inference, that Dr Dutt’s allegation of race discrimination was a ground for the conduct which caused the detriment. There is evidence that the Internal Audit report of December 1998 and the administrative responses to it was such a ground.
SUMMARY OF FINDINGS
Race discrimination
278 We find that in relation to Allegation 1 Dr Dutt’s complaint of unlawful discrimination on the ground of race is substantiated.
279 In relation to Allegations 3, 6 and 7 we are not satisfied that the conduct alleged by Dr Dutt occurred.
280 In relation to Allegations 2,5,8 and 11 we are satisfied that the conduct occurred, but not that the conduct was less favourable treatment within the meaning of the ADA.
281 In relation to Allegations 4,9 and 10 we are satisfied that the conduct occurred and that it was less favourable treatment, but not that Dr Dutt’s race was a ground for the treatment.
282 In relation to Allegation 12, we are satisfied that the conduct occurred, but whether or not the conduct was less favourable treatment we are satisfied that Dr Dutt’s race was not a ground for the treatment.
283 Accordingly Dr Dutt’s complaint of unlawful discrimination on the ground of race is substantiated only to the extent of Allegation 1.
Victimisation
284 In relation to Allegations 13,14 and 16 we are not satisfied that the conduct alleged by Dr Dutt occurred.
285 In relation to Allegations 15 and 17 we are satisfied that the conduct occurred. We are not however satisfied that Dr Dutt suffered a detriment within the meaning of the ADA or, in the alternative, that if Dr Dutt suffered a detriment, that Dr Dutt’s race was a ground for that detriment.
286 Accordingly Dr Dutt’s complaint of victimisation is not substantiated.
DAMAGES
287 In relation to the substantiated complaint of race discrimination, the Tribunal may order the CCAHS to pay to Dr Dutt damages not exceeding $40,000 by way of compensation for any loss or damage he suffered by reason of its conduct (s113 ADA). The need to consider other powers the Tribunal has does not arise in the circumstances.
288 Dr Dutt was upset and offended by the unlawful conduct. He was not harmed physically and there is no evidence that he was harmed psychologically. His own conduct contributed to the manner in which Dr Sparke acted. The Tribunal has considered the circumstances in which the unlawful discriminatory conduct occurred, the evidence from Dr Dutt as to how the conduct affected him, and awards of damages in comparable cases (see for example Phillips v Aboriginal Legal Service (1996) EOC 92-704 where the conduct was similar but more serious). We have assessed the sum of $2,000 as an appropriate award of damages.
COSTS
289 The CCAHS sought an order for costs.
290 Each party to an inquiry shall pay their own costs unless the Tribunal is of the opinion in a particular case that there are circumstances that justify making some other order as to costs (s114 ADA).
291 The Tribunal is not of the opinion that that there are such circumstances in this particular case. Consequently the application for costs is dismissed. Each party shall pay their own costs.
ORDERS
1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.
2. The complaint of victimisation is dismissed.
3. The respondent shall within 28 days pay to the applicant the sum of $2,000 by way of compensation for loss and damage.
4. The application for costs is dismissed.
Revised 27/11/02 to correct grammatical errors and to replace the word applicant with complainant where appropriate
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