Imielska v Director-General, NSW Health

[2012] NSWADT 25

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Imielska v Director-General, NSW Health [2012] NSWADT 25
Hearing dates:	31 January 2012
Decision date:	15 February 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the applicant's complaint to proceed.
Catchwords:	LEAVE - whether fair and just for complaint of age and race discrimination to proceed - meaning of substantially higher proportion element of indirect discrimination
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Jones and Anor v Ekermawi [2009] NSWCA 388 O'Callaghan v Loder [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Perera v Civil Service Commission [1982] IRLR 147
Texts Cited:	Rees, Lindsay and Rice, Australian Anti-Discrimination Law, The Federation Press, 2008.
Category:	Interlocutory applications
Parties:	Grazyna Imielska (Applicant) Director-General, NSW Health (Respondent)
Representation:	G Imielska (Applicant in person) Gild Insurance Litigation (Respondent)
File Number(s):	111128

REasons for decision

Introduction

1. Ms Imielska is a 54 years old woman who migrated to Australia from Poland in 1996. She has been working at Royal North Shore Hospital as a Technical Assistant in the Radiology Department since December 2007. She has made numerous complaints against her employer since 2008. She made further complaints about how those complaints were investigated and resolved. In September 2010, and again in May 2011, she complained to the President of the Anti-Discrimination Board of race and age discrimination. The President only accepted her complaints about incidents which had occurred after September 2009.

1. The complaints were about comments made by other employees and managers, the way in which her complaints had been investigated and the fact that she was not eligible for appointment to a position of trainee sonographer in 2010. The reason she was ineligible was that the respondent had a policy of only appointing employees who were already employed as radiographers in the Department. A sonographer uses ultra sound to produce images of the body, whereas a radiographer operates X-ray and other imaging equipment.

1. The President of the Anti-Discrimination Board declined Ms Imielska's complaint as lacking in substance. She applied to the Tribunal for permission for her complaint to go ahead: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance.

1. In order to decide whether the complaint should proceed I need to examine both the factual and legal basis for the complaint and come to a view as to whether it is fair and just for it to proceed.

The complaint

1. The allegations Ms Imielska makes are listed in a letter to the Anti-Discrimination Board dated 4 March 2011 (Tab 10 to the President's Report, p 176). The majority of the allegations concern the fact that Ms Imielska was ineligible to apply for appointment to a position of trainee sonographer in 2010. She had several meetings with managers during which that issue was discussed.

1. In a second complaint dated 5 May 2011 (Tab 13, p 191) Ms Imielska explained why she regards the policy of restricting the pool of trainee sonographers to those employed as radiographers as race discrimination:

Skill[ed] migrants who come to Australia are NOT getting any financial support from the Australian Government for the first 2 years of their residency. To be able to support themselves and their families, they have to work. Most of the time, they work as cleaners, security guards, and orderlies or, like me, Technical Assistants. . .

[The respondent's] decision, that training in sonography is available to Radiographers only, is NOT reasonable and disadvantage[s] all migrants who wish to progress their careers to ultrasound. Sonography is Postgraduate Qualification and it is open to many groups of employees, NOT ONLY RADIOGRAPHERS. The [respondent's] decision discriminates against me and all (100%) migrants from Russia, Poland and China etc. who are holding adequate overseas qualifications and have decided [to] progress their career in sonography.

1. The respondent wrote to the Anti-Discrimination Board responding to these allegations on 19 April 2011 (Tab 11 to the President's Report, p 179.) That response contained some denials and some explanations of the allegations. In relation to the trainee sonography position, the respondent said that:

The criterion that an applicant for the trainee sonography position must be an employed Radiographer is directly related to the nature of the position and applies uniformly to all applicants regardless of their race or age.

1. In later correspondence (Tab 15, p 204) the respondent submitted that:

Training positions in all radiology modalities such as CT, MRI and Ultrasound are scarce and unfunded with trainees requiring constant supervision and teaching from a senior radiographer. All trainees, including ultrasound trainees are required on occasion[s] to undertake general radiographer duties. Ability to train radiographers in specialty areas is a strong attraction for radiographer recruitment and improves staff retention which is important with a national radiographer shortage.

1. The respondent also denied that any subsequent investigation, review, correspondence or meeting between representatives of the respondent and Ms Imielska have been influenced by her race or age. Ms Imielska responded re-iterating her version of events.

Allegations relating to trainee sonographers

1. In order to substantiate this complaint, Ms Imielska would have to prove that the respondent has breached s 8(2)(b) of the AD Act which states that:

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment

1. The complaint is one of "indirect" race discrimination as defined in s 7(1)(c). That provision states that:

(1) 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 or the race of a relative or associate of the aggrieved person, the perpetrator:

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

1. In order to prove indirect race discrimination in relation to access to opportunities for training and promotion, Ms Imielska would have to establish that:

(1)   the respondent has required her to comply with a requirement or condition that in order to be eligible for appointment to a trainee sonographer position she must be employed as a radiographer;

(2)   a substantially higher proportion of people not of the applicant's race can comply with this requirement compared with people of her race;

(3)   the applicant cannot comply with this requirement; and

(4)   the requirement is not reasonable in all the circumstances.

1. The respondent admits that it imposed the requirement. It is also apparent that Ms Imielska cannot comply with the requirement because she is not employed as a radiographer. If this matter goes to hearing, the main focus would be on the second and fourth elements.

1. The "substantially higher proportion" element can be difficult to prove. Ms Imielska would be required to prove that the requirement imposed by the respondent is much more easily satisfied by people not of her race. This is not a case where the Tribunal would take "judicial notice" of that proposition. It is not self evident. Unsurprisingly, Ms Imielska has no statistical evidence of the races of radiographers or others employed in the Department who are not radiographers but who would otherwise be eligible to apply for the trainee position. She puts forward a general proposition that migrants from Poland, Russia and China, in particular, are more likely to take low paid jobs because their overseas qualifications are often not recognized in Australia. While she may able to prove that assertion in a general sense, it does not prove that discrimination has occurred in the particular circumstances of this case. This is one of those cases where, despite the undesirability of requiring statistical evidence, such evidence would be necessary: Perera v Civil Service Commission [1982] IRLR 147 at 151-2.

1. Ms Imielska faces several hurdles in obtaining that evidence and, even if obtained, in proving the second element of indirect discrimination. The relevant evidence is the race of people employed in the Radiography Department at the end of 2009, over 2 years ago. The definition of race in this context is also unclear. If Ms Imielska compared Polish people with people who were not Poles, the numbers are likely to be too small to make any valid comparison. Another option is to compare migrants from non-English speaking backgrounds with people who were born in Australia. While that definition is more likely to produce a valid comparison it would include migrants who obtained their qualifications in Australia and people born in Australia who obtained qualifications overseas.

1. If the migrant/non-migrant comparison were used, Ms Imielska would have to obtain evidence as to the number of migrants and non-migrants employed as radiologists and the number of migrants and non-migrants not employed as radiologist but who were otherwise eligible to apply for the position of trainee sonographer in 2010. If it had this evidence, the Tribunal would have to compare two fractions. The numerator of each fraction would be the number of migrants who could comply with the requirement and the number of non-migrants who could comply with the requirement, respectively. The denominator of each fraction would be the number of migrants to whom the requirement is directed and the number of non-migrants to whom the requirement is directed, respectively.

1. Assume, for example, that 12 people are employed as radiographers, 2 are migrants and 10 are non-migrants. The numbers 2 and 10 are the numerators for each fraction. Also assume that Ms Imielska is the only migrant who is otherwise eligible but that there are 2 non-migrants who are otherwise eligible to apply. the numbers 3 and 12 are the denominators for each fraction. The fractions (or proportions) would be: 2/3 (or 8/12) and 10/12. If these were the proportions a Tribunal hearing this matter is unlikely to be satisfied, given these small numbers, that 10/12 was a "substantially" higher proportion than 8/12.

1. These figures are purely hypothetical. They are provided to illustrate how the proportions are calculated and the legal and practical difficulties that Ms Imielska would face in attempting to prove her case. Even if Ms Imielska was able to obtain the necessary evidence and prove that a substantially higher proportion of non-migrants could comply, she would also have to prove that the requirement was not reasonable in all the circumstances. The onus would be on her, not the respondent, to establish that element of indirect discrimination.

1. In this case, the respondent has provided a plausible justification for the requirement. The authors of Australian Anti-Discrimination Law note at p 140 that, "Australian anti-discrimination law requires a relatively low level of justification in order for a requirement or condition which has an adverse impact . . . to avoid finding that it constitutes unlawful discrimination."

1. In all the circumstances I do not consider it fair and just for the complaint relating to the trainee sonographer position to proceed.

Other allegations

1. The remaining allegations relate to comments made by managers who met with Ms Imielska after she had complained or who made casual remarks to Ms Imielska about not being able to understand her or inquiring about whether she had grandchildren.

1. The only basis on which mere words could amount to discrimination would be if they came within the test laid down in O'Callaghan v Loder [1983] 3 NSWLR 89. In that case Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or a "term or condition" of employment. Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman.

1. On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment . The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These principles apply equally to harassment on other grounds including age and race.

1. The nature and extent of the alleged conduct that Ms Imielska said she was subjected to is highly unlikely to meet the threshold of a work environment permeated by ageist or racist harassment. In those circumstances, I am not satisfied that it is fair or just for Ms Imielska's complaint about those alleged comments to proceed.

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Decision last updated: 15 February 2012