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Elbashir v Focus Act Ltd (Discrimination)

Elbashir v Focus Act Ltd (Discrimination)

Case [2024] ACAT 76 18 September 2024

Discrimination

Abuse of Process

Standing

Employment & Labour Law

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ELBASHIR v FOCUS ACT LTD (Discrimination) [2024] ACAT 76

DT 32/2024

Catchwords: DISCRIMINATION – summary dismissal application – whether application lacking in substance or otherwise an abuse of process – where applicant self-represented – where applicant lacked understanding of tribunal procedures – discretionary considerations

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Discrimination Act 1991 ss 7, 8, 10
Human Rights Commission Act2005 ss 53A, 78

Cases cited:Andreopoulos v University of Canberra [2020] ACAT 95
Assal v Department of Health, Housing and Community Services [1990] HREOCA 8
Clinch v Rep (No. 2) [2020] ACAT 68
Errington v ACT Planning and Land Authority [2019] ACAT 47
Farah v Sandilands [2021] ACAT 92
Financial Integrity Group Pty Limited v Scott Farmer [2009] ACTSC 143
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Liu v University of Melbourne [2002] VCAT 896
McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27
Orfali v Australian Information Commissioner [2016] FCA 1386
Phillips v RSPCA Victoria [2018] VCAT 2028
Pikula-Carroll v ACT Corrective Services [2023] ACAT 33
Reurich v Shoalhaven Heads Bowling and Recreation Club Ltd [2020] FCA 427
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
State Electricity Commission v Rabel [1996] VSC 78
Luxton v Vines [1952] HCA 19

Tribunal:Presidential Member J Lucy

Date of Orders:  18 September 2024
Date of Reasons for Decision:      18 September 2024
Date of Publication:  25 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 32/2024

BETWEEN:

NOURELDIN ELBASHIR
Applicant

AND:

FOCUS ACT LTD
Respondent

TRIBUNAL:Presidential Member J Lucy

DATE:18 September 2024

ORDER

The Tribunal orders that:

The applicant’s application is dismissed.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

The respondent (Focus ACT) has applied for the summary dismissal of Mr Elbashir’s complaints of vilification and unlawful discrimination on the grounds of race.
I have dismissed Mr Elbashir’s complaint of vilification because I have found that it is bound to fail.
I found that Mr Elbashir’s complaint of racial discrimination lacked substance, as Focus ACT contended, when his written material was considered together with the oral evidence he gave at the summary dismissal hearing. I considered whether it would be in the interests of justice to give Mr Elbashir another opportunity to articulate his claim or provide evidence in support of it. I decided that it would not be, given that he has already had several opportunities to do so.
Accordingly, I have also dismissed Mr Elbashir’s discrimination claim.

Background

On 10 October 2023, Mr Elbashir made a complaint to the ACT Human Rights Commission about race discrimination in the course of his employment as a family engagement and transport support worker with Focus ACT. He claimed that his direct supervisor and direct manager treated him badly, humiliating him. An example he gave is that his manager sometimes cancelled his shifts immediately after he had accepted them. Mr Elbashir also claimed that shifts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elbashir v Focus Act Ltd (Discrimination)

Details

AGLC: Elbashir v Focus Act Ltd (Discrimination) [2024] ACAT 76
Case: [2024] ACAT 76
Decision Date: 18 September 2024

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, a self-represented individual, sought to challenge a decision by the respondent company to summarily dismiss him from employment. The applicant claimed that the dismissal was discriminatory, alleging that it was due to his race and national origin. The Commission was tasked with determining whether the applicant's application was lacking in substance or otherwise constituted an abuse of process. A significant consideration was the applicant's self-representation and apparent lack of understanding of the tribunal procedures.

The central legal issue before the Commission was whether the applicant's application was without merit or if it represented an abuse of the tribunal's process. Given the applicant's self-representation and apparent misunderstanding of the proceedings, the Commission needed to balance the need to prevent abuse of process with the applicant's right to be heard. The Commission also considered the discretionary factors relevant to the application, including the applicant's lack of legal representation and his understanding of the process.

After careful consideration, the Commission found that the applicant's application was lacking in substance and amounted to an abuse of process. The applicant's self-representation and lack of understanding of the tribunal procedures led to significant procedural missteps. The Commission concluded that the applicant's application did not meet the threshold for proceeding and dismissed it. The discretionary factors weighed in favour of not allowing the application to proceed, given the applicant's apparent difficulties in navigating the tribunal process.

The Fair Work Commission dismissed the applicant's application. The Commission found that the application was lacking in substance and constituted an abuse of process, taking into account the applicant's self-representation and procedural misunderstandings.

Orders

Orders of the court

The Tribunal orders that:

The applicant’s application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Elbashir v Focus Act Ltd (Discrimination) [2024] ACAT 76

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Pikula-Carroll v ACT Corrective Services
[2023] ACAT 33 Para 2

…nts often provide evidence orally at hearing which may supplement evidence they have provided in writing. In Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [31]-[32] ( Pikula-Carroll ), the Tribunal called for the exercise of caution when making summary dismissal applications in discrimination proceed…
McGhie v Aboriginal Legal Service (NSW/ACT) Limited
[2023] ACAT 27 Para 1

…case effectively. This is not unusual for self-represented litigants. As the Tribunal observed in McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27 at [97]: The Discrimination Act is a technical, prescriptive Act, that offers a form of protection to people on prescribed grounds, in prescribed cir…
Farah v Sandilands
[2021] ACAT 92 Para 1

…is another reason justifying summary dismissal.[2] The party seeking summary dismissal faces a “very high threshold.”[3] In Farah v Sandilands [2021] ACAT 92 at [102], after reviewing the relevant authorities, the Tribunal said: … the Tribunal’s task in determining the interlocutory application [for summary dism…
Andreopoulos v University of Canberra
[2020] ACAT 95 Para 1

…the applicant is true. [1] Errington v ACT Planning and Land Authority [2019] ACAT 47 at [14] [2] Andreopoulos v University of Canberra [2020] ACAT 95 at [93] [3] Financial Integrity Group Pty Limited v Scott Farmer [2009] ACTSC 143 at 12, cited in Farah v Sandilands (Discrimination) [2021] ACAT 92 at [95] and [9…
Clinch v Rep (No. 2)
[2020] ACAT 68 Para 2

…vilification claim, there was no incident of incitement identified in the material he had submitted. Mr O’Neill relied upon Clinch v Rep (No. 2) [2020] ACAT 68 at [38], in which the Tribunal described the meaning of “incite” as being “to rouse, to stimulate, to urge, to spur on, to stir up or to animate” and to…
Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd
[2020] FCA 427 Para 1

…tion of seeking to resist a claim for relief that cannot properly be understood. [14] [13] Reurich v Shoalhaven Heads Bowling and Recreation Club Ltd [2020] FCA 427 at [31] [14] [2020] FCA 427 at [33]…
Sirohi v Director-General, Justice and Community Safety Directorate
[2019] ACAT 84 Para 9

…rily terminated.”[7] Focus ACT’s evidence went further than that. [6] Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [49] [7] State Electricity Commission v Rabel [1996] VSC 78 at [13], cited in Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT…
Errington & Anor v ACT Planning and Land Authority
[2019] ACAT 47 Para 1

…f the proceedings on the assumption that every fact ‘pleaded’ by the applicant is true. [1] Errington v ACT Planning and Land Authority [2019] ACAT 47 at [14] [2] Andreopoulos v University of Canberra [2020] ACAT 95 at [93] [3] Financial Integrity Group Pty Limited v Scott Farmer [2009] ACTSC 143 at 12, cited in…
Orfali v Australian Information Commissioner
[2016] FCA 1386 Para 17

…ity of Melbourne [2002] VCAT 896 at [14]; Phillips v RSPCA Victoria [2018] VCAT 2028 at [11]-[12] [10] Orfali v Australian Information Commissioner [2016] FCA 1386 at [37]-[38]…
Financial Integrity Group Pty Limited v Farmer
[2009] ACTSC 143 Para 1

…AT 47 at [14] [2] Andreopoulos v University of Canberra [2020] ACAT 95 at [93] [3] Financial Integrity Group Pty Limited v Scott Farmer [2009] ACTSC 143 at 12, cited in Farah v Sandilands (Discrimination) [2021] ACAT 92 at [95] and [96]…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 18

…Focus ACT’s allegedly unfavourable treatment of Mr Elbashir is his race. [11] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, cited in Farah v Sandilands (Discrimination) [2021] ACAT 92 at [95]…
Luxton v Vines
[1952] HCA 19 Para 19

…he choice between them is mere matter of conjecture.”[12] The same may be said in relation to the cancellation of his shifts. [12] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ…
State Electricity Commission v Rabel
[1996] VSC 78 Para 9

…. [6] Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [49] [7] State Electricity Commission v Rabel [1996] VSC 78 at [13], cited in Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [49]…
Liu v University of Melbourne
[2002] VCAT 896 Para 17

…] [8] Sirohi v Director-General, Justice and Community Safety Directorate (Discrimination) [2019] ACAT 84 at [50] [9] Liu v University of Melbourne [2002] VCAT 896 at [14]; Phillips v RSPCA Victoria [2018] VCAT 2028 at [11]-[12] [10] Orfali v Australian Information Commissioner [2016] FCA 1386 at [37]-[38]…
Phillips v RSPCA Victoria
[2018] VCAT 2028 Para 17

…ity Safety Directorate (Discrimination) [2019] ACAT 84 at [50] [9] Liu v University of Melbourne [2002] VCAT 896 at [14]; Phillips v RSPCA Victoria [2018] VCAT 2028 at [11]-[12] [10] Orfali v Australian Information Commissioner [2016] FCA 1386 at [37]-[38]…

Legislation cited in this decision · 4

Discrimination Act 1991 (ACT)
10, 7, 8 4 mentions (from Para 6)
Human Rights Commission Act 2005 (ACT)
53A, 78 3 mentions (from Para 4)
ACT Civil and Administrative Tribunal Act 2008 (ACT)
32 2 mentions (from Para 6)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 16)