Han v NSW Department of Health

[2006] NSWADT 113

CITATION:	Han v NSW Department of Health [2006] NSWADT 113
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Seng Kuwang Han RESPONDENT NSW Department of Health
FILE NUMBER:	041149
HEARING DATES:	26/10/05
SUBMISSIONS CLOSED:	10/26/2005
DATE OF DECISION:	04/19/2006
BEFORE:	Grotte E - Judicial Member
CATCHWORDS:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Australian Iron and Steel Pty Ltd –v- Banovic (1987) 168 CLR 165 Briginshaw v Bringinshaw (1938) 60 CLR 336CLR 349 Commissioner of Corrective Services –v- Aldridge (EOD) [2000] NSWADTAP 5 Dee v Commissioner of Police & Anor (2003) NSW ADT 217 Dutt –v- Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 Fricke –v- Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc –v- Commissioner for Railways (NSW) (1964) 112 CLR 125 IW –v- City of Perth (1997) 191 CLR 1 Reddy –v- International Cargo Express (2004) NSWADT 218 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Waters –v- Public Transport Corporation (1991) 173
REPRESENTATION:	APPLICANT In person RESPONDENT K Thomas, solicitor
ORDERS:	1 The complaints on the grounds of race and disability concerning non-response to emails, non-payment of wages, shift allocation, amendment of recreation leave form, constructive dismissal and the conduct of the investigation into the complaint are dismissed pursuant to section 102 of the ADA; 2 The complaint of victimisation is dismissed pursuant to section 102 of the ADA; 3 The complaint of race discrimination concerning the events of 23 April 2004 is not dismissed and is to proceed to a full hearing; 4 Costs are reserved.

Background

1 On 11 April 2004 Seng Kuwang Han, the Applicant, complained to the Anti-Discrimination Board (ADB) alleging that he had been discriminated against by the NSW Department of Health, the Respondent, on the ground of his race in employment.

2 On 23 May 2004 he forwarded a further complaint to the ADB alleging that he had been discriminated against by the Respondent in his employment on the ground of his disability and that he had been subjected to victimisation because of his complaint to the ADB. The original complaint to the ADB included references to events that occurred more than 6 months prior to Mr Han lodging his complaint with the ADB, that is, prior to 16 October 2003. According to the President’s report to the Tribunal, Mr Han confirmed that he did not wish those events falling before 16 October 2003 to be investigated by the ADB, as these were included in the complaint as background information only.

3 The Applicant also complained that Gillian Fuller, a legal officer employed by the Respondent, discriminated against him on the ground of his race. Ms Fuller responded on behalf of the Respondent to the ADB’s investigation into the Applicant’s complaints in a letter to the ADB dated 3 August 2004. The Applicant claimed that this letter contained objectionable material and that he felt bullied and harassed as a result.

4 The Applicant also complained that Ms Eyeson-Annan discriminated against him on 16 September 2004 in the way she dealt with the investigation in response to enquiries made of the Respondent by the ADB.

5 Following the ADB’s investigation into the complaints, the President of the ADB decided to decline the complaints as lacking in substance pursuant to section 92(1) of the ADA. On 15 December 2004 requested that the complaints be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal pursuant to section 91(2) of the ADA.

The Complaint of Race Discrimination against Mr Gorringe and Ms Eyeson-Annan

6 Mr Han commenced his employment on a temporary casual basis as a “CATI” market research interviewer for the Health Survey Program Unit of the Centre for Epidemiology of the NSW Department of Health in or around April 2001. His contracts of employment continued to be renewed, with some variations, until February 2004. In February 2004 Mr Han and three other employees were notified that their contracts would not be renewed. This decision was subsequently reversed and Mr Han was issued with another contract of employment. However his contract of employment ceased on 30 June 2004.

7 Mr Han complained that his direct shift supervisor, Mr Mathew Gorringe, discriminated against him on the ground of his race on 3 April 2004. Mr Han alleged that on that day, Mr Gorringe informed him that he would be monitoring his interviewing performance that day. Mr Han claimed that his last performance audit by the Respondent occurred in April 2001. Mr Han claimed that he asked Mr Gorringe whether anything had “gone wrong”. Mr Han claimed that Mr Gorringe told him that nothing was wrong but that everyone had the chance to be monitored for performance. Mr Han claimed that no explanation was given for the monitoring.

8 Mr Han claimed that he had been concerned about the way management had dealt with him and he was concerned that the real reason for the monitoring on 3 April 2004 was to get rid of him. He claimed that the Respondent had “terminated his service without due process” and had made “no mention of any performance deficiency nor identified any other cause or justification for contract non-renewal”. Mr Han claimed that decisions had been made to “get rid of ‘difficult’ interviewing employees”.

9 Mr Han claimed that Margo Eyeson-Annan, the Manager of the NSW Health Survey Program, strongly objected to “interviewers who demonstrated ‘aggressive behaviour’ particularly in internal staff meetings” and that he was on the top of her “hate” list. Mr Han claimed that this was because he had made allegations of corrupt conduct against Ms Eyeson-Annan claiming nepotism, cronyism and maladministration.

10 Mr Han claimed that usually, when monitoring, the shift supervisor would sit behind the interviewer listening and taking evaluation notes. In this way the interviewer would be aware which interview was being monitored. Mr Han claimed that on 3 April 2004 Mr Gorringe monitored him from his desk, which was some discrete distance away. Mr Han claimed that he was treated differently from others who were monitored and that the differential treatment was for reasons of his race. Mr Han claimed that the monitoring of his performance in this way meant that Mr Gorringe could “ambush” Mr Han and find fault when Mr Han least expected it.

11 Mr Han claimed that Mr Gorringe made unsubstantiated allegations of inadequate performance concerning a survey Mr Han completed at about 3:30pm on 3 April 2004. Mr Han claimed that at that time, he interviewed a person for about 16 minutes when she told him that she had to leave for personal reasons at about 4:30pm. He claimed however, that this person then told him that she had to leave urgently. Mr Han claimed that he asked if he could reschedule the interview to a convenient time on 4 April 2004. The person agreed. Mr Han claimed that Mr Gorringe criticised him for allowing the person to rush him through the interview. Mr Han also claimed that Mr Gorringe alleged that the interview had been terminated, implying that Mr Gorringe had to terminate the interview, as it had been unsatisfactory.

12 Mr Han also claimed that Mr Gorringe criticised him for not pronouncing clearly certain words such as “confidence” and “squirming” and that the interviewer had difficulty understanding his accent. Mr Han claimed that Mr Gorringe then “taught” Mr Han how to correctly pronounce these words in Mr Gorringe’s native accent. Mr Han claimed that he had difficulty reproducing, to Mr Gorringe’s satisfaction, the correct pronunciation. Mr Han claimed that Mr Gorringe insisted that Mr Han should not repeat the questions put to the interviewer nor should Mr Han spell the words if there was any doubt. Mr Han claimed that in another interview on 3 April 2004 he struck some problems with an interviewee who had comprehension problems because he complied with this direction. Mr Han claimed that the training manual at page 29 specifically stated that, “Some people will prefer to do the survey quickly and will answer the questions without hesitation. Others will want all questions read slowly and very clearly.”

13 Mr Han claimed that Mr Gorringe wanted to force Mr Han to use the preferred accent (Australian) and that this amounted to indirect discrimination on the ground of race.

14 Mr Han claimed that other interviewers frequently repeated questions in the survey and the fact that Mr Gorringe would not allow him to do this amounted to less favourable treatment on the ground of his race. Mr Han claimed that Mr Gorringe had an ”undisclosed agenda to slow him down and frustrate his role accomplishment”. Mr Han claimed that management had ordered that at least one survey should be completed per hour. Mr Han claimed that Mr Gorringe’s requirement that he read word for word all the answer codes would prejudice his job security.

15 Mr Han claimed that within the CATI unit of the Respondent, there were other employees who had strong accents but that none of these people had been instructed to read the survey in accordance with Mr Gorringe’s preferred accent. Mr Han claimed that the requirement to speak with an Anglo-Saxon accent was a requirement that the majority of Australians of Anglo-Saxon origin can comply or are able to comply.

16 Mr Han claimed that there are many different accents in the Australian population and that his Singaporean accent may be beneficial when interviewing Asian interviewees. Mr Han claimed that a person with a perfect Anglo-Saxon accent could also encounter linguistic difficulties. Mr Han claimed that Mr Gorringe’s insistence on speaking with a particular accent is based on a false assumption because an interviewee who has a Chinese, Thai, Japanese or Sri Lankan accent may have difficulty understanding a person with such an accent. Mr Han claimed that Cate Madill, a Speech Pathologist and Voice Consultant, had conducted training for CATI interviewers and she had informed those attending the training that some accents can be an advantage and are considered to be more pleasing to listen to, although accents can be a problem if intelligibility to the listener is reduced.

17 Mr Han claimed that he obtained his job with the Respondent through a merit-based selection process. In the course of this process he read a sample of questions and this reading was heard and evaluated by an interviewing panel. No issue regarding his accent was raised and he successfully obtained the position. In addition, Mr Han claimed that he had successfully completed thousands of health surveys without issue.

18 Mr Han claimed that he asked Mr Gorringe to examine Mike Davies’s completion record as Mr Davies had a strong Yorkshire accent and Mr Han believed that Mr Davies would be a good comparator, as he would have similar experiences with interviewees. Mr Han claimed that Mr Davies often boasted that he was able to complete surveys in less than 12 minutes and that this meant he would use short cuts and paraphrase the survey questions. Mr Han claimed that Mr Gorringe refused to examine Mr Davies’ record saying that this was irrelevant to the question of Mr Han’s performance.

19 Mr Han claimed that Mr Gorringe initially refused to provide him with a copy of the evaluation but later agreed to and insisted that he sign an acknowledgement that his evaluation record was a true factual account of his observations of Mr Han’s performance and that Mr Han would comply with his demands.

20 Mr Han claimed that on 4 April 2004 he worked the Sunday shift when Ms Lindy Latham was the supervisor. Mr Han claimed that Ms Latham instructed all the interviewers to log out after one survey as the system needed to be rebooted. Mr Han had rescheduled the interview from the previous day and was concerned about being unable to complete the survey. He claimed that he asked Ms Latham to shift the interview from 1:13pm to 1:40 pm if the system was ready. He claimed that Ms Latham shifted the interview but Mr Han claimed that the records did not show this. He claimed that he was concerned about this fact and he claimed that it showed that a supervisor could “potentially enter a completed survey, edited [sic] its data and leaving no incriminating evidence of this alteration”. Mr Han claimed that the CATI software application and the evaluation process were vulnerable to corruption.

21 Mr Han also claimed that on 4 April 2004 Peter Eburne, a CATI interviewer, asked Ms Latham for an explanation regarding the completion times of surveys. Mr Eburne told Ms Latham that his completion time was in excess of 20 minutes but that other interviewers were completing the surveys in an average of 15 minutes. Mr Han claimed that Mr Eburne asked Ms Latham “How can anyone else complete his survey in an average of 15 minutes without corrupting the conduct of the survey process?” Mr Han claimed that Ms Latham said that she did not know and that she would check. Mr Han claimed that the fact that both Ms Latham and Mr Gorringe claimed not to know this indicated to him that there was corruption, wastage and maladministration within the CATI operations and that people like Mr Davies were being protected, whereas he was being targeted on the basis of his race.

22 Mr Han claimed that as a result of this exchange between Ms Latham and Mr Gorringe, he felt sick and struggled to complete three surveys in three hours, which was the minimum standard. He took sick leave. He claimed that his high blood pressure was aggravated by stress.

23 Mr Han claimed that he had previously not had problems with his performance and that he had in fact received unsolicited compliments on his performance from Mr Gorringe. He claimed that in March 2003 Mr Gorringe commented that he “is an extremely dedicated interviewer who is reliable to a fault. He works very hard and his performance figure reflects this. While Richard approach [sic] his work in a very professional manner he does need to read the questions more slowly. This must be addressed this quarter.” Mr Han claimed that he was a proven performer and that he had received a CATI Award for Excellence in 2002 and the “Sydney Symphony Award for Best Conducting.

24 Mr Han claimed that he was sick and unable to report to work on 7 April 2004. Mr Han claimed that he asked a colleague to check his next rostered shift, but he was informed by Mr Hamish Malcolm that he had not been allocated a shift for the following week. Mr Han claimed that he felt humiliated and victimised. Mr Han claimed that he believed that his employment had been terminated but he was reinstated on 8 April 2004. Mr Han claimed that this had happened in February 2004 when his employment was terminated without due process and reinstated verbally two weeks later.

25 Mr Han claimed that the reason that he had been targeted for racial discrimination was because he was in conflict with Mr Eyeson-Annan over a set of performance criteria, which she had proposed and he had questioned and over Ms Eyeson-Annan’s comments that CATI positions would never be considered for permanency. Mr Han claimed that he had also been in conflict with Ms Eyeson-Annan over issues of alleged maladministration and nepotism. The claims regarding nepotism relate specifically to employment of Ms Eyeson-Annan’s son, Ebenezer, in August 2002 allegedly outside the merit-based recruitment process. This claim falls outside the period, which has been referred to the Tribunal but was provided for background information only.

Complaint of Victimisation and Disability Discrimination

26 On 23 May 2004 the Applicant lodged a complaint of victimisation pursuant to section 50 of the ADA and disability discrimination.

27 Mr Han complained that after he was discharged from hospital he emailed his supervisors, Mr Gorringe, Ms Latham and Mr Van Ritten on 18 April 2004 to indicate his availability to work over the period 26 April 2004 to 9 May 2004. Mr Han stated that he indicated that he was available to work on Saturday 1 May 2004, Sunday 2 May 2004, Saturday 8 May 2004 and Sunday 9 May 2004. Mr Han claimed that he was still very ill and he required further diagnostic tests and follow-up on his post-recovery treatment. He claimed that it was therefore very difficult for him to be available to work on weekdays as most medical services were only available on weekdays. He claims that his supervisors were advised of his health circumstances.

28 Mr Han claimed that Ms Latham replied by saying that “to get all weekend shifts you need to work two shifts during the week”. Mr Han claimed that he informed Ms Latham that he did not require only weekend shifts. He stated that he only wanted one shift per week at a maximum. Mr Han claimed that after three days Ms Latham responded and stated “I am currently doing the roster. Unfortunately I can’t bend the rules and give you a weekend shift without doing one during the week. You can do one shift during the week or one shift during the week to do one on the weekend”. Mr Han claimed that he had not been told of any such requirement and in any case, on many occasions, the rules were overlooked to accommodate favouritism practised by supervisors. Mr Han claimed that Ms Latham knowingly was forcing him to do a weekday shift to receive a weekend shift or to simply do a weekday shift in isolation. He claimed that both options were difficult to comply with given his health circumstances, which were known to Ms Latham.

29 Mr Han claimed that other employees such as Barbara Duncan and Noritaka Yanai were allocated weekend shifts without working a weekday shift. He claimed that Ms Yanai had been allocated a weekend shift on 8 May 2004 after he had been told by Ms Latham that she could not do so in his case. Mr Han claimed that Ms Eyeson-Annan’s son was also given preferential treatment in this regard.

30 Mr Han claimed that the stress of this situation caused considerable damage to his physical and emotional health in the week before his colonoscopy on 15 April 2004 in that he suffered repeated bouts of dizziness, shortness of breath and hyperventilation over a week forcing him to take sick leave.

31 Mr Han also claimed that Ms Eyeson-Annan denied him his recreational leave entitlements when he needed them urgently and forcibly imposed the expiry of his recreational leave consumption to coincide with the end of his contract. He claimed that she constructively dismissed his employment without due process because leave could only be taken up to the 30 June 2004, which was the end of the Applicant’s contract. He claimed that Ms Eyeson-Annan had an undisclosed discriminatory agenda to terminate his contract knowing that he had initiated proceedings in the ADB.

32 The Applicant claimed that Ms Eyeson-Annan discriminated against him on the ground of his disability between 18 April 2004 and 9 May 2004 when she altered his application for recreation leave without his consent.

33 The Applicant lodged two letters of complaint with the ADB on 11 April 2004 and 23 May 2004. The ADB conducted an investigation into the allegations and in so doing, asked the Respondent to provide comments. Ms Gillian Fuller, a legal officer employed by the Respondent, responded to the allegations. The Applicant claimed that he felt bullied and harassed by Ms Fuller as a result of her responses.

34 The Applicant further claimed that Ms Eyeson-Annan discriminated against him on 16 September 2004 on the ground of his race because of the manner in which she dealt with and investigated his complaint in response to the investigation conducted by the ADB.

35 The Applicant also claimed that on 3 or 4 March 2004 he was discriminated against on the ground of his disability when he was not paid for the six hours he had worked but was only paid for half an hour.

Application by the Respondent pursuant to section 102 of the Anti-Discrimination Act 1977 (ADA)

36 On 20 July 2005 the Respondent sought dismissal of the Applicant’s complaints pursuant to section 102 of the ADA on the basis that the complaints are misconceived, frivolous, vexatious and lacking in substance and that the conduct alleged, if proved, would not disclose a contravention of a provision of the ADA. It was submitted that the Tribunal would be able to assess the merits of the Applicant’s complaints on the material available to the Tribunal without the need to proceed to a hearing.

37 It was submitted on behalf of the Respondent that the complaints do not reveal a breach of the ADA and that there is no merit in the complaints.

38 It was submitted that on 3 March 2004 the Applicant entered into a four month employment contract with the Respondent working as a market research interviewer on a temporary basis. It was submitted that there can be no dispute that the Applicant entered into a contract which was due to expire on 30 June 2004. It was submitted therefore that the Applicant was employed as a temporary employee working a minimum of five hours a week for a period of up to four months finishing on 30 June 2004.

39 It was submitted that the Applicant’s job entailed conducting telephone interviews in order to collect information from members of the public, which could later be used for research and statistical analysis.

40 It was submitted on behalf of the Respondent that the complaint that Ms Eyeson-Annan had discriminated against him on the ground of his race with respect to the manner in which she investigated enquiries from the ADB ought be summarily dismissed, as it is vexatious and lacking in substance. It was submitted that the facts as alleged would not give rise to a complaint under the ADA and the Applicant has not provided any documentation in support of his allegation. It was submitted on behalf of the Respondent that a denial of the allegations does not imply a faulty investigation or that the Applicant has somehow be discriminated against because of the denial.

41 It was submitted on behalf of the Respondent that for the Applicant to satisfy the Tribunal that he has made out the grounds of indirect discrimination on the basis of race, the Applicant has to adduce admissible evidence that would prove, on a balance of probabilities, that (i) he was required to comply with a requirement or condition, (ii) a substantially higher proportion of persons not of the Applicant’s race are able to comply with that condition, (iii) the requirement was not reasonable having regard to the circumstances of the came and (iv) that he does not or is not able to comply with the requirement.

42 It was submitted on behalf of the Respondent that the Applicant asserted that Mr Gorringe required him to speak with an Australian accent but he was not told this explicitly. It was submitted that the Applicant was asking the Tribunal to make this assumption because he was required to repeat the words “squirming” and “confidence” to Mr Gorringe’s satisfaction and as Mr Gorringe has an Australian accent, by implication, this was required of the Applicant. It was submitted on behalf of the Respondent that the documents relied upon by the Applicant to support his claim, being the Continuous Survey Observation Report dated 3 April 2004 and Mr Gorringe’s handwritten notes dated 3 April 2004, do not support his complaint or that the Applicant was not required to speak with an Australian accent either implicitly or explicitly. It was submitted that these documents clearly indicate that the Applicant was not required to speak with an Australian accent but that the Applicant was asked to speak slower so that he could pronounce all words he was required to read out in the survey properly so that he could be better understood by the listener.

43 It was submitted that the fact that the Applicant has construed this request to speak slower to mean that he was required to speak with an Australian accent, does not alter the fact that he was not directed to do so, either implicitly or explicitly.

44 It was further submitted that there is no basis for the Applicant’s allegation that he was given a week to comply with the requirement as the documents reveal that due to the observed interview being rushed by the interviewee, Mr Gorringe arranged for another assessment within a week.

45 It was submitted that in order to establish indirect discrimination, the Applicant also had to identify a comparator group or pool of persons with which to compare himself.

46 The Respondent submitted that the Applicant has asked the Tribunal to compare him with Ebenezer Eyeson-Annan because he was the recipient of favouritism while he worked in the Health Survey Branch at the end of 2003. The Respondent submitted that the comparator group should be the other colleagues with whom the Applicant worked at the time of the alleged incident. It was submitted that even if the Tribunal found that the Applicant was required to speak with an Australian accent, it would be unlikely that the Applicant could adduce evidence or would adduce evidence to support the element of the claim relating to the comparator group of his colleagues.

47 The Respondent submitted that the Applicant’s own claim states that a high proportion of his colleagues have a strong non-Australian accent, such as Mike Davis, who has a strong Yorkshire accent, and Hamish Malcolm, who according to the Applicant, has a unique New Zealand accent, or Irene Serrano, who according to the Applicant has a Philippino-American accent and a Canadian lady friend of Trish Fox who, according to the Applicant, has a thick Canadian accent. It was submitted by the Respondent that the Applicant referred to having six colleagues who were of Asian extraction.

48 It was submitted that if the Tribunal finds that the Applicant was asked to speak slower so that he could pronounce all words properly, then the Tribunal could find that the comparator group could comply with this requirement, but, it was submitted that the requirement to speak slower and clearer would not be unreasonable in the circumstances of the Applicant’s position as a telephone interviewer. Accordingly, it was submitted that on either construction of the Applicant’s case, the Applicant has no reasonable cause of action under the ADA.

49 The Respondent also submitted that the Applicant must prove that he was required to do something unreasonable in the circumstances. Brennan J in the case of Waters –v- Rizkalla (1990) EOC 92-282 stated that consideration must first be given to whether it is reasonable to impose the requirement or condition “in order to perform the activity or complete the transaction” and secondly, regard must be had to whether the transaction or activity can be performed without imposing a requirement that is discriminatory. Relevant factors in considering the relationship of the requirement to the transaction include the effectiveness of the requirement, the efficiency of the requirement, the convenience of the requirement and the cost of not imposing the discriminatory requirement or substituting another requirement.

50 The Respondent submitted that the requirement to speak slowly and pronounce words properly is not, in the circumstances, an unreasonable requirement of a person who is employed to conduct interviews. In fact the requirement to speak slowly so as to enable an interviewer to be better understood is an efficient and convenient way of communicating for a telephone interviewer. It was submitted that the Applicant has not adduced any evidence, nor is he likely to adduce any evidence to substantiate the claim that the requirement is not reasonable in the circumstances and therefore he has no reasonable cause of action.

51 It was submitted that as the Applicant did not state whether he did or did not comply with the alleged requirement, either to speak with an Australian accent or to speak slowly and pronounce words clearly, the issue is academic, as the Applicant’s case does not meet any of the other requirements of indirect discrimination.

52 It was submitted that the Applicant’s complaint that he was subjected to discrimination on the ground of his disability when Ms Eyeson-Annan amended his recreation leave form and when Mr Van Ritten, Ms Latham and Mr Gorringe did not respond to his emails and because he was only paid for half an hour when he had worked for six hours on 3 and 4 March 2004 should be struck out as misconceived, frivolous and lacking in substance. It was submitted that on 17 April 2004 a medical certificate was issued for the Applicant stating that he was unfit to work for the period 15 to 23 April 2004. On 24 April 2004 the Applicant submitted an application for 32 days of recreation leave commencing on 26 April 2005. On 24 April 2005 the Applicant requested leave without pay. On 4 May 2004 Ms Eyeson-Annan informed the Applicant that he was not entitled to 20.14 days of recreation leave and she amended the form accordingly. It was submitted by the Respondent that there is no evidence to support the Applicant’s claim that there is a nexus between the Applicant’s alleged disability and the alteration to the leave form.

53 It was submitted that no reasonable person would have construed Ms Eyeson-Annan’s letter to the Applicant dated 4 May 2004 as amounting to constructive dismissal but even if the Tribunal found that it did so, there is no evidence to link the alleged dismissal either directly or indirectly to any alleged disability. The Applicant’s own documents reveal that all temporary employees whose contracts did not to expire on 30 June 2004 had their contracts terminated on that date.

54 It was submitted by the Respondent that there is no evidence to support the claim that by not responding to his emails that Mr Van Ritten or Mr Gorringe or Ms Latham discriminated against the Applicant on the ground of his disability.

55 Similarly, it was submitted that there is no evidence to support the claim that there is a nexus between non-payment of wages and the Applicant’s disability.

56 It was submitted that the Applicant’s complaint of victimisation against Mr Gorringe, Ms Eyeson-Annan and Ms Fuller should be dismissed as it is vexatious, as it appears that the Applicant is using the ADA to mount complaints against any person who meets with his displeasure.

Legal Principles with respect to an Application Pursuant to Section 102 of the ADA

57 Section 102 of the ADA provides as follows:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a) (i) or (ii) or (b).

58 Section 92(1)(a)(i) and (ii) confers on the President of the ADB the power to decline a complaint during investigation of a complaint if the President is satisfied that the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance or if the President is satisfied that the conduct alleged, or part of the conduct alleged, is proven, would not disclose the contravention of a provision of this Act or the regulations.

59 As Barwick J observed in General Steel Industries Inc –v- Commissioner for Railways (NSW) (1964) 112 CLR 125 “a Court must be satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion” and “ a Plaintiff ought not be denied access to the customary Tribunal which deals with actions of a kind…unless his lack of a cause of action is clearly demonstrated”.

60 The Tribunal has previously considered applications pursuant to section 111 of the ADA, which is the former provision in similar terms to section 102. Section 102 however, confers on the Tribunal the additional power of enabling the Tribunal to dismiss a complaint or part of a complaint if the conduct alleged if proven would not disclose a contravention of the provisions of the ADA.

61 In previous decisions in which the Tribunal has considered whether to summarily dismiss a complaint or part of a complaint, the Tribunal has stated, consistent with His Honour, Chief Justice Barwick’s observations set out above, that the discretion to do so must be exercised with exceptional caution and only if the circumstances clearly warrant such an action.

62 As the Tribunal stated in Fricke –v- Corbett Research P/L [2004] NSWADT 128

The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant's evidence at the substantive hearing. Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case.

It has been suggested that "prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of a self-represented complainant: Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 at para 14. See also Dee v Commissioner of Police & Anor (2003) NSW ADT 217 at para. 24:

63 Accordingly, the Tribunal’s approach in such matters is to take the Applicant’s case at its highest and determine whether, when taken at its highest, it could possibly substantiate a complaint or disclose a contravention of a provision of the ADA. As stated by the Tribunal in Fricke’s case:

The standard of satisfaction for a Section 111 application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish (at para. 20).

The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there may be grounds on which to decide that the complaint either ought be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called.

Direct Discrimination in Employment on the Ground of Race

64 The test for the direct discrimination on the ground of race is set out in section 7(1)(a) of the Anti-Discrimination Act 1977 (ADA). That section provides that “a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the person’s race … the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that race…”.

65 Race” is defined in section 4(1) of the ADA as including “colour, nationality, descent and ethnic, ethno-religious or national origin”. Section 8 provides inter alia:

(1) It is unlawful for an employer to discriminate against a person on the ground of race:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment,

(c) …

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:
(a) in the terms and conditions of employment which the employer affords the employee,

(b) …

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

66 The word “detriment” should be given its ordinary meaning of “loss, damage or injury” (the Macquarie Dictionary, 3rd Edition, the Macquarie Library). The detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively” (Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]).

67 The Appeal Panel in Commissioner of Corrective Services –v- Aldridge (EOD) [2000] NSWADTAP 5 held that there are two key components to establishing direct discrimination. The first being differential different and the second being causation. Differential treatment should be considered first and if there is no differential treatment then it is unnecessary to consider causation. Accordingly the Tribunal must consider first whether there has been any less favourable treatment and secondly, whether the less favourable treatment was on the ground of race.

68 As stated by the Tribunal in Dutt –v- Central Coast Area Health Service [2002] NSWADT 133 the “consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess ‘less favourable treatment’…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 of treatment of the applicant were…it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person of not the applicant’s race would have been treated differently”. This Tribunal agrees that where the comparator is hypothetical, as stated in Dutt’s case, the “two questions as to ‘less favourable treatment’ and ‘on the ground of race’ might be answered as part of the same reasoning exercise”.

69 If less favourable treatment is established the Applicant must also establish a causal link between the treatment and their race. If there is no direct evidence then the Applicant must rely on inference drawn from the primary facts or a course of conduct (Edwards v Bourke Bowling Club Limited [2000] NSWADT 31). In Edwards’ case and Dutt’s case and in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 the following considerations were identified as necessary to the drawing of inferences:

A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts.

An inference must be reasonably drawn on the basis of the primary facts.

An inference can be drawn from a combination of facts, none of which viewed alone would support that inference.

A fact relied on as the basis of an inference need not be proved to the requisite standard of proof.

It is not enough that the inference is a mere possibility. It must be one of “probable connection”.

The inference must be a logical one and not supposition.

An inference cannot be made where more probable and innocent explanations are available on the evidence.

70 The Respondent submitted that the appropriate standard of proof is that set out in Briginshaw v Bringinshaw (1938) 60 CLR 336. It is commonly accepted in this Tribunal that findings should be made according to the evidentiary requirements of Briginshaw.

Direct Discrimination in Employment on the Ground of Disability

71 The test for the direct discrimination on the ground of disability is set out in section 49B(1)(a) of the Anti-Discrimination Act 1977 (ADA). That section provides that “a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the person’s disability … the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability…”

72 Relevantly, “disability” is defined in the ADA to mean “inter alia” the “presence in a person’s body of organisms causing or capable of causing disease or illness”.

73 Section 49D(2)(d) makes it “unlawful for an employer to discriminate against a person on the ground of disability… by subjecting the employee to any other detriment”. As stated above the word “detriment” should be given its ordinary meaning of “loss, damage or injury” (the Macquarie Dictionary, 3rd Edition, the Macquarie Library) and the detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively” (Sivananthan’s case).

74 The Tribunal must also ask the question of whether the Applicant was treated less favourably than a person without his particular disability. Section 49B(1)(a) of the ADA requires that the conduct towards Mr Han by the Respondent with respect to the shift allocation and the non-response to emails be compared with conduct towards an actual or hypothetical person “who does not have that disability”. The comparison involves a consideration of how the alleged discriminator treats or would treat a person who does not have the particular disability or a disability that is substantially the same (IW –v- City of Perth (1997) 191 CLR 1).

Indirect Discrimination in Employment on the Ground of Race

75 Section 7(1)(c) sets out the test for indirect discrimination. It provides that “a person (“the perpetrator) discriminates against another person (“the aggrieved person”) on the ground of race if, on the ground of the aggrieved person’s race …, the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, …, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.”

76 To prove indirect discrimination the Applicant needs to establish that he has been required to comply with a requirement or condition with which a substantially higher proportion of persons, who are not of the same race as the Applicant are able to comply, with which he cannot comply and which is not reasonable in the circumstances of the case. Each of these elements must be present in order to make out a case of indirect discrimination.

77 The onus is on the Applicant is to establish indirect discrimination.

78 What constitutes the condition or requirement in a claim of indirect discrimination is a question of fact (Waters –v- Public Transport Corporation (1991) 173 CLR 349) and must be identified with some precision (Australian Iron and Steel Pty Ltd –v- Banovic (1987) 168 CLR 165).

79 As this Tribunal stated in Reddy –v- International Cargo Express (2004) NSWADT 218 “the ability to comply in the context of indirect discrimination is to be assessed in a practical not a theoretical sense”.

Victimisation

80 Under section 50 of the ADA the Respondent will have victimised Mr Han if it subjected him to a “detriment” because he alleged that the Respondent had contravened the ADA. The relevant parts of section 50 are as follows:

50(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings 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.

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

81 In determining whether the whole or any part of the Applicant’s complaints should be dismissed summarily pursuant to section 102 or alternatively, the whole of or any part of the complaints should proceed to a full hearing, the Tribunal has examined whether the facts as stated by the Applicant, at their highest, could substantiate a complaint or disclose a contravention of the legislation. In performing this task the Tribunal has proceeded with exceptional caution and has only had regard to the documents provided to it by the Applicant.

Complaint on Ground of Disability re Non-Response to Email

82 The Applicant claimed that he sent an email to Mr Gorringe, Ms Latham and Mr Van Ritten on 21 April 2004 and that neither Mr Gorringe nor Mr Van Ritten replied to the email and that their non-response constituted discrimination on the ground of disability.

83 There is evidence before the Tribunal in the form of a sickness certificate dated 17 April 2004 in which the Applicant’s doctor stated that the Applicant was unfit to undertake normal occupational duties from 15 April 2004 to 23 April 2004. The Tribunal notes that the Applicant informed the Tribunal during a case conference that at the relevant time he suffered from a disability, which resulted from a colonoscopy for the removal of a poylp in his colon. The Tribunal is satisfied that that this constitutes a disability for the purposes of the legislation.

84 There is evidence before the Tribunal that the Applicant sent an email to “Lindy (Ms Latham), Matt (Mr Gorringe) or Jason (Mr Van Ritten)” on 18 April 2004 stating as follows:

Recuperating from my recent unexpected hospitalisation. My medical certificate is unfit for normal duties until 23 April 2004. Will go in an (sic) attempt my allocated shift on 24 May even if for a few hours. My forward availability for next fortnight commencing 256 April 2004 is 1 May 2004 (Saturday), 2 May 2004 (Sunday), 8 May 2004

(Saturday), 9 May 2004 (Sunday).

85 There is evidence before the Tribunal that Ms Latham responded on the same day to the email sent by the Applicant dealing with the issue of shift allocation. There is no evidence of any response from the other recipients of the Applicant’s email.

86 The Tribunal notes that the email was sent to the three persons on an alternative basis. One of those persons to whom the email was addressed responded. It is the Tribunal’s view that the non-response by Mr Gorringe and Mr Van Ritten cannot be construed as less favourable treatment on the ground of race. It is difficult to see what the less favourable treatment is, given that Ms Latham responded to the email and was dealing with the issue raised in the email. In addition, there is no evidence before the Tribunal to support a causal link between the non-response by those persons and the Applicant’s disability. The Applicant was provided with ample opportunity to provide any further evidence.

87 Accordingly, the Tribunal is satisfied that this complaint is lacking in substance and dismisses it pursuant to section 102 of the ADA.

Complaint on the Ground of Disability re Non-Payment of Wages

88 The Applicant claimed that on 3 or 4 March 2004 he was not paid for six hours of work he completed but was only paid for half an hour.

89 The Applicant has not provided any evidence of the non-payment of wages nor of the hours worked. Taken at its highest, there is no evidence to support the Applicant’s assertion of a causal link between non-payment of wages for work undertaken and the Applicant’s disability.

90 Accordingly, the Tribunal is satisfied that that complaint is lacking in substance and dismisses it pursuant to section 102 of the ADA.

Complaint on the Ground of Disability re Shift Allocation

91 The Applicant claimed that he was discriminated against on the ground of his disability because he was required to work a weekday shift to work a weekend shift and that he could not do this as he required medical services, which were more easily available to him during the week.

92 On 18 April 2004 the Applicant sent an email setting out his availability in the following fortnight. He indicated in this email that he was available to work on 1 May 2004, a Saturday, 2 May 2004, a Sunday, 8 May 2004, a Saturday and 9 May 2004, a Sunday. Ms Latham responded on the same day stating “I hope you are feeling better. To get all weekend shifts you need to work 2 shifts during the week”. The Applicant responded on the same day stating “I don’t need all weekend shift. One shift per week is sufficient for me now, Lindy – given my state of health. In an emergency , it is easier to get to medical help weekdays. In (sic) am just indicating availability only, allocation is your’s (sic) decision.” Ms Latham responded to this email on 21 April 2004 stating “I am currently doing the roster. Unfortunately, I can’t bend the rules and give you a weekend shift without one during the week. You can do one shift during the week or one shift during the week to do one shift on the weekend.” The Applicant then responded on 21 April 2004 stating “ I am not asking you or anyone to bend the rules. I prefer everything to be above board so that no acrimony arise (sic) between CATI staff members. My original intention as disclosed to you was to indicated (sic) AVAILABILITY to suit my present medical circumstances but willing to go in and work ONE SHIFT ONLY PER WEEK for the next fortnight until I can better judge my health pressures. On the above note, if you could, just allocated (sic) me one day shift perhaps a Friday day shift each week please (hedging my bet that if “struggling” through the last day of that work week would be enough for me)”.

93 The Applicant claimed that he had not been informed of any requirement regarding weekend work and that, in any event, this requirement had been overlooked to accommodate other CATI employees. The Applicant referred to other employees such as Barbara Duncan and Noritaka Yanai. Rosters were provided for the fortnightly periods of 15 March 2004 to 28 March 2004 and 26 April 2004 to 8 May 2004.

94 The Tribunal has examined the fortnightly rosters and notes that both Ms Duncan and Ms Yanai worked a weekday shift as well as a weekend shift in the fortnightly period and that the rosters generally do not support the Applicant’s claims of less favourable treatment.

95 Additionally, the Tribunal does not accept the Applicant’s claim that he was unable to work a weekday shift and comply with the requirement because of his disability, because his own evidence in the email dated 21 April 2004 is that he could work a Friday day shift and indeed, offered to do so. This evidence is inconsistent with his claim that he could not work a weekday shift because of medical attention for his disability.

96 The Tribunal is of the view that this complaint is lacking in substance and accordingly, dismisses it pursuant to section 102 of the ADA.

Complaint on the Ground of Disability with respect to the Amendment of the Applicant’s Recreation Leave Form

97 The Applicant claimed that Ms Eyeson-Annan amended his recreation leave form application to his detriment because of his disability.

98 On 24 April 2004 the Applicant applied for recreational leave for urgent medical attention for 32 days from 26 April 2004 to 8 June 2004. On 4 May 2004 Ms Eyeson-Annan wrote to the Applicant stating as follows:

Upon receipt of your application for leave, we have checked with salaries and have found you are eligible for 20.14 days of recreational leave, not 32 days. These 20.14 days equate to 120.85 hours of recreational leave. This leave can be taken to end on 30/6/04, which is the end of your contract. You are not able to apply for leave after the end date of current contract.

We have adjusted your leave form and a photocopy of it is enclosed.

For future reference, as the Manager of the CATI facility I approve all applications for leave, not Steve McNab.

We hope you are feeling better soon.

99 The Applicant’s own evidence indicates that he was employed under a temporary contract and that his latest such contract expired on 30 June 2004. As at the date of his application for recreation leave on 24 April 2004 the evidence is that the Applicant’s current employment contract was due to expire on 30 June 2004. It is reasonable to infer from Ms Eyeson-Annan’s letter to the Applicant that he was given all the leave that was due to him taking him up to the end of his contract. There is no evidence to support a conclusion that the Applicant was constructively dismissed as a result of this letter. The letter was stating the situation as it stood at that time with respect to the Applicant’s available leave.

100 There is no evidence before the Tribunal that the Applicant was treated less favourably on the ground of his disability than any other employee would have been treated in the same or materially similar circumstances and there is no evidence of any causal link between the alteration of the recreation leave form and the Applicant’s disability. The Applicant had an opportunity to make both written and oral submissions in this regard but there was no further evidence placed before the Tribunal.

101 The Tribunal is satisfied that this complaint is lacking in substance and is dismissed pursuant to section 102 of the ADA.

Complaint on the Ground of Race with respect to the manner in which Ms Eyeson-Annan conducted the investigation into the complaints

102 The Tribunal is satisfied that there is no substance to this complaint and that there is no reasonable cause of action under the ADA in this regard. It is apparent that an investigation was conducted by Ms Eyeson-Annan in response to the complaint being sent to her by the ADB. The fact that the outcome of the investigation is not favourable to the Applicant does not amount to less favourable treatment of the Applicant on the ground of his race. There is no evidence before the Tribunal other than the Applicant’s assertion to support the claim that any deficiencies in the investigation were because of the Applicant’s race or that a person of a different race would have been treated differently. The Applicant had an opportunity to put submissions in writing and orally to the Tribunal regarding any further evidence but did not do so.

103 This complaint is dismissed pursuant to section 102 of the ADA.

Complaint on the Ground of Race that Gillian Fuller discriminated against the Applicant

104 The Applicant claimed that he felt bullied and harassed by the comments made by Ms Fuller in her response to the ADB. The comments made by Ms Fuller were as follows:

The Department views with some disquiet the fact that Mr Han has copied work rosters and annexed them to his complaint dated 23 May 2004. The issue of copying details of other employees was raised with him on 25 March 2004, as is noted at page 17 of his letter of complaint dated 11 April 2004. The copying of personal information of other employees which may be made public by the complainant in inappropriate circumstances was and remains of considerable concern to the Department.

105 The Tribunal acknowledges that the Applicant may have been unhappy with Ms Fuller’s comments regarding the inappropriateness of his actions with respect to the work rosters. However there is no evidence before the Tribunal that the Applicant was treated less favourably than a person of a different race would have been treated in the same circumstances or circumstances that are not materially different. The evidence before the Tribunal is that the Respondent was concerned with the private information of other employees who had nothing to do with the proceedings before the ADB.

106 The Tribunal is satisfied that this complaint is lacking in substance and therefore dismisses it pursuant to section 102 of the ADA.

Complaint of Victimisation

107 The Applicant claimed that he had been victimised pursuant to section 50 with respect to the shift allocation, the amendment to his recreation leave application and constructive dismissal, the non-response to his emails, failure to pay the right amount for hours worked on 3 and 4 March 2004 and the way the complaints were investigated by Ms Margo-Eyeson- Annan and Gillian Fuller.

108 The Applicant lodged his complaint of race discrimination with the ADB on 11 April 2004. The ADB wrote to the Respondent seeking its comments to the complaint on 6 July 2004. This was the first time the ADB notified the Respondent of the existence of the complaint. However the Applicant claims that the Respondent knew about the complaint before that date because he had informed the PSA and three colleagues that he intended to lodge formal proceedings for the matter to be dealt with. The Applicant believed that the Respondent would have been aware of the complaint or his intention to lodge a complaint with respect to race discrimination.

109 Even taken at its highest there is no objective evidence to support the Applicant’s assertion that Ms Eyeson-Annan or the Respondent knew of the complaint or of the Applicant’s intention to lodge a complaint prior to 6 July 2004 when the ADB wrote to it. A mere assertion that the Respondent must have known because he told the PSA and three colleagues is not, in the Tribunal’s view, sufficient to establish that the Respondent knew about the complaint or his intention to lodge a complaint or institute proceedings and that he was victimised as a result.

110 The Tribunal is of the view that the Applicant would not succeed in this allegation and that the complaint therefore lacks substance. The complaint of victimisation is dismissed pursuant to section 102 of the ADA.

Complaint on the Ground of Race concerning Mr Gorringe and the incident on 3 April 2004

111 The Applicant complained that on 3 April 2004 one of his interviews was monitored by his supervisor, Mr Gorringe, for no apparent reason. He claimed that Mr Gorringe conducted the monitoring in an unusual manner, in that he sat some distance away from the Applicant. He claimed that Mr Gorringe criticised the way he pronounced certain words and that he was required to pronounce these words to Mr Gorringe’s satisfaction with an Australian accent and that he was given a week to do so. The Applicant claimed that he was treated differently from other interviewers and the differential treatment was because of his race.

112 The Applicant’s complaint has been characterised as both direct and indirect discrimination. He claimed that he was treated less favourably than other interviewers who were not of his race in that his performance was criticised and being forced to slow down the interview would adversely affect his performance. The Applicant also claimed that he was required to speak with an Australian accent to Mr Gorringe’s satisfaction but that he could not comply with this requirement and that it was an unreasonable requirement.

113 The Applicant is unrepresented in these proceedings. The application to summarily dismiss has been made before any evidence has been taken from the Respondent. Given these circumstances the Tribunal is of the view that it must approach the dismissal application with exceptional caution as stated above in this decision. As stated earlier in this decision, the Tribunal must be satisfied that the Applicant has no chance of succeeding.

114 The Tribunal notes that the Applicant has relied on a document created by Mr Gorringe and bearing the title “Continuous Survey Observation Record 2004” dated 3 April 2004 in which Mr Gorringe stated “Certain words such as ‘squirming’ and ‘confidence’ were not read properly, poor pronunciation.” This supports the Applicant’s contention that the pronunciation of these words was a problem identified by Mr Gorringe. The document also stated that “I will do another observation on Richard within one week”. This statement also provides some support for the Applicant’s claim that he would be reviewed after a week. The Tribunal notes that according to the Applicant’s evidence, he did not have any problems previously with his interviewing and indeed, appeared to have been doing very well.

115 The Tribunal is of the view that this aspect of the Applicant’s complaint does not lack substance and it is the Tribunal’s view that this complaint should be allowed to proceed to a full hearing at which time the Respondent’s evidence will be adduced. It may be that ultimately the complaint is not substantiated, as the Applicant must establish all the elements of indirect discrimination to succeed or, alternatively, all the elements of direct discrimination. However, at this stage, it is the Tribunal’s view that it would be premature and unfair to the Applicant to summarily dismiss this aspect of the complaint as it appears that, if proven, it may disclose a contravention of the ADA.

116 The Tribunal declines to dismiss the complaint regarding race discrimination concerning the events on 3 April 2004.

Orders

1. The complaints on the grounds of race and disability concerning non-response to emails, non-payment of wages, shift allocation, amendment of recreation leave form, constructive dismissal and the conduct of the investigation into the complaint are dismissed pursuant to section 102 of the ADA.

2. The complaint of victimisation is dismissed pursuant to section 102 of the ADA.

3. The complaint of race discrimination concerning the events of 23 April 2004 is not dismissed and is to proceed to a full hearing.

4. Costs are reserved.