KANAR and CHIEF EXECUTIVE OFFICER WORKCOVER WA
[2012] WASAT 180
•28 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: KANAR and CHIEF EXECUTIVE OFFICER WORKCOVER WA [2012] WASAT 180
MEMBER: MS D TAYLOR (SENIOR MEMBER)
HEARD: 20 JUNE 2012 AND 18 JULY 2012
DELIVERED : 28 AUGUST 2012
FILE NO/S: EOA 10 of 2012
BETWEEN: MUSTAFA KANAR
Applicant
AND
CHIEF EXECUTIVE OFFICER WORKCOVER WA
First respondentQBE INSURANCE (AUSTRALIA) LTD
Second respondent
Catchwords:
Equal opportunity - Unlawful discrimination - Complaint dismissed by Commissioner for Equal Opportunity as misconceived and lacking in substance - Complaint referred to Tribunal - Application to strike out proceeding allowed in part
Legislation:
Equal Opportunity Act 1984 (WA), s 36, s 46, s 66A, s 66K, s 89, s 90
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)
Result:
Complaint of unlawful discrimination on the ground of impairment struck out
Complaint of unlawful discrimination on the ground of race referred to mediation
Category: B
Representation:
Counsel:
Applicant: Self-represented
First respondent : Ms S Teoh
Second respondent : Mr D McKenna
Solicitors:
Applicant: N/A
First respondent : State Solicitor's Office
Second respondent : Jarman McKenna
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent and Commissioner of Police [2009] WASAT 254
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The respondents applied to strike out a claim for unlawful discrimination on the grounds of race and impairment, in the area of the provision of goods and services, that had been dismissed by the Commissioner for Equal Opportunity as lacking in substance and misconceived, and referred to the Tribunal at the request of the applicant.
The Tribunal granted the application insofar as it concerned the complaint of discrimination on the ground of impairment, because the facts upon which the applicant relied founded a complaint of negligence, not discrimination. The complaint was lacking in substance and was incapable of being upheld under the terms of the Equal Opportunity Act 1984 (WA).
The Tribunal refused the application insofar as it concerned the complaint of discrimination on the ground of race, because the applicant was able to show that the second respondent had taken an inconsistent approach to the provision of an interpreter for him at medical assessments. This inconsistency had resulted in the applicant being required to communicate in English at some medical assessments, and being permitted to communicate in his first language at others.
The complaint of discrimination on the ground of race warranted further consideration.
The Tribunal's reasons for striking out part of the proceeding were delivered orally at the hearing. Those reasons, taken from the transcript and edited in some minor respects, were as follows.
Background
This application concerns Mr Mustafa Kanar (applicant) who was injured in the workplace on 1 November 2007 when employed as a chef at Efe's Turkish Bakery. He was taken to Armadale Hospital by a colleague where he received treatment for the injury to his leg. He was off work for some time receiving further treatment, and made a claim for workers' compensation. He did not return to work.
According to the applicant, he was unable to return to work because of the injury he received on 1 November 2007 and the consequences that flowed from it. He says that he is permanently disabled as a result of the injury, or because of the inadequate or inept treatment he received subsequently.
The first respondent is the Chief Executive Officer of WorkCover (WA), the government agency responsible for overseeing the workers' compensation and injury management system in Western Australia.
The second respondent, QBE Insurance (Australia) Ltd, is the insurer for the applicant's employer and played a part in the assessment of the applicant's claim for workers' compensation.
According to the respondents, the applicant has not returned to work because he is malingering. As a result of the differences of opinion as to why the applicant did not return to his job in the bakery, the parties became embroiled in proceedings relating to workers' compensation.
The nature of the complaints of discrimination
On 31 August 2011, the applicant lodged a complaint with the Commissioner for Equal Opportunity (Commissioner) against the respondents, alleging that he had been unlawfully discriminated against on the grounds of race and impairment in the areas of employment and the provision of goods or services. He complained of events dating back to 2007. The Commissioner informed him that her investigation could not include complaints about events that took place more than 12 months before the lodging of his complaint, so the investigation was confined to events that took place between September 2010 and August 2011.
On 10 November 2011, the applicant withdrew his complaints of race and impairment discrimination in the area of employment only. This left the complaint to be investigated by the Commissioner to be one of unlawful discrimination on the grounds of race and impairment in the provision of goods or services.
On 8 February 2012, the Commissioner advised the applicant that she was dismissing his complaints as being misconceived and lacking in substance under s 89 of the Equal Opportunity Act 1984 (WA) (EO Act). In doing so, she said the following:
The reasons for dismissing your complaint are as follows:
To establish a complaint of race and/or impairment discrimination you must show you have been treated less favourably than other persons in the same or similar circumstances, and that the less favourable treatment is due to your race and/or impairment. There has been no evidence submitted to substantiate this.
The Commissioner went on to advise the applicant that if he was dissatisfied with her decisions, he could require her to refer the matter to the Tribunal.
Proceedings before the Tribunal
The Commissioner referred the complaint to the Tribunal under s 90 of the EO Act in response to the applicant's request that it be so referred.
The applicant has represented himself in these proceedings. He has used the services of a Turkish interpreter provided by the Tribunal throughout the hearing.
The first and second respondents are separately represented by lawyers.
On 24 April 2012, the Tribunal ordered that:
1. On or before 4 May 2012 the applicant is to file and give to each respondent a document which sets out clearly the conduct occurring after 27 August 2010 which he says was discriminatory and why the conduct was unlawful discrimination on the ground of race or impairment and if possible the sections of the [EO Act] upon which he relies as the basis of his claim.
2. The proceeding is adjourned to a further directions hearing at 2.15 pm on 8 May 2012 in order to further program the matter.
On 2 May 2012, the applicant filed a document in compliance with that order entitled 'Supplementary Evidence for Mustafa Kanar'. It follows the form of an affidavit and was sworn before a Justice of the Peace for Western Australia at Perth on 1 May 2012. The document was written in the English language and contains no clause indicating that the contents were translated to the applicant before it was sworn.
The document consists of 60 paragraphs that outline the applicant's case regarding the medical treatment he received and medical assessments he underwent, both at the behest of the second respondent and arranged on his own initiative. It gives a fluent and articulate account of the chronology of medical appointments attended by the applicant, and his recollection of the treatment he received and the conversations that occurred during the appointments.
As far as the complaint of impairment is concerned, the applicant says that he takes issue with the medical opinions expressed by a number of doctors from whom reports were commissioned by the second respondent. He disagrees with the diagnoses that some doctors have made about him and the symptoms that they record as having observed. In essence, the applicant complains that he received inadequate medical treatment. He believes this to be unlawful discrimination because, as he explains it, his injury (impairment) led him to receive inadequate medical treatment. He does not complain about being refused treatment (services), but about the quality of the treatment he received.
As far as the complaint of discrimination on the grounds of race is concerned, the applicant's supplementary evidence reads as follows:
…
3.On 3 December 2010 QBE set up an appointment to see Dr. Wright. I requested a translator and none was provided. I had rung QBE, my solicitor and the doctor's rooms to confirm my presence and to ensure a translator would be present.
4.An appointment was set up by QBE on 29 December 2010 to see Dr. Kon Kozak. When I attended[,] his office was closed. Luke Westall from QBE could not explain. I had asked for a translator on that occasion. I had rung QBE, my solicitor and the doctor's rooms to confirm my presence and to ensure a translator would be present.
5.I wrote to my solicitor and QBE Insurance that day to ask about the Dr. Kozak appointment and to ask why QBE would not provide translators for their mandatory appointments.
6.QBE made an appointment for me to see Dr. Terace on 12 January 2011. I requested a translator and none was provided. I had rung QBE, my solicitor and the doctor's rooms to confirm my presence and to ensure a translator would be present.
7.QBE made an appointment for me to see Dr. Home on 14 January 2011[.] I requested a translator and none was provided. I had rung QBE, my solicitor and the doctor's rooms to confirm my presence and ensure a translator would be present.
8.My solicitor told me Luke Westall had claimed, when asked about the lack of translators, that they were not going to fund translators for me as I didn't need one and that I should arrange and pay for one myself.
…
The applicant complains that, in a report dated 5 December 2010, one of the consultants to whom he was referred described him as being 'originally from Turkey'. The applicant believes this to have caused the doctor to reach conclusions about his medical condition that were inaccurate and misleading. He complains that the assessment was carried out in circumstances where, due to the lack of an interpreter, the doctor had not understood him.
The applicant went on to say:
…
10.On 12 January QBE had arranged an appointment for me with Dr. Terace. He told me a translator was not going to attend so my partner helped explain his questions during the consultation. During the consultation Dr. Terace asked me complex questions including asking me whether I had 'suicidal intentions or inclinations'. I had rung QBE, my solicitor and the doctor's rooms to confirm my presence and ensure a translator would be present. …
At the hearing, the applicant said that he could not understand what Dr Terace said to him, because he spoke with an (Italian) accent. He said that his partner did the best she could to translate for him, but she does not speak Turkish or Italian. He described a scene in which his nonTurkish or Italian speaking partner interpreted the doctor's English for the applicant, and his English for the doctor.
The applicant also wrote the following:
…
11.14 January 2011 QBE's Dr. Home reports 'he stated that he did not require an interpreter although one had apparently been requested'. I waited 75 minutes in his waiting room, believing an interpreter was going to arrive but one did not. I told him I had requested and required an interpreter. I had rung QBE, my solicitor and the doctor's rooms to confirm my presence and ensure a translator would be present. …
Whilst the applicant's document dated 27 April 2012 differs in form to one likely to be prepared by a lawyer, it does disclose the substance of his complaints against the respondents. These relate, in short, to complaints about having received inadequate medical treatment, and the refusal of the second respondent to make an interpreter available at a number of medical appointments arranged at his behest.
On 21 May 2012, the first respondent filed an application to strike out the applicant's claim on the grounds that the proceeding was misconceived and lacking in substance. It says that the claim:
(a)identifies issues not within the jurisdiction of the Tribunal; and
(b)fails to identify any act or acts of unlawful discrimination on the grounds of race or impairment in the area of goods and services and the factual and legal basis upon which it is contended the [f]irst [r]espondent is liable for such acts …
It submits that the claim should be struck out because:
(a)the [a]pplicant has no arguable case in fact or law, which should be allowed to be resolved at a full hearing; and
(b)the [a]pplicant's claim is manifestly groundless and discloses a case that cannot succeed.
On 22 May 2012, the second respondent filed a submission in support of the application to dismiss and/or strike out the proceeding.
The application to strike out was listed for hearing on 20 June 2012. In the course of the hearing, it became clear that the applicant's complaint of discrimination on the grounds of impairment was, in substance, one of medical negligence, rather than discrimination. The applicant was unable to point to any incident of him being denied medical treatment for the injury he sustained in the workplace. He pointed to many examples of him receiving treatment and being the subject of assessments which he did not like and which, according to him, aggravated his condition rather than relieved it. These complaints do not found a claim for discrimination.
However, during the hearing, the applicant tendered a document that he had not produced previously that comprised a letter he had written to his solicitors on 29 December 2010, in which he says the following:
…
Could your office please doublecheck the appointments made for me by QBE Insurance with Dr. Terace and Dr. Home, to make sure these appointments are genuine appointments and that I do not waste my time any further with false appontments [sic][?]
Could you please notify QBE Insurance that I insist on having a Turkish translator at each of these appointments because of the poor treatment I have received from these doctors in the past and also because I would like to have a witness to verify the events that take place during these dodgy consultations. I requested a translator for my appointment with Dr. Wright and my request was ignored. As you already know, QBE Insurance did not comply with my request for a translator but obviously spent money on two private investigators dangerously pursuing me through the city after that appointment.
Thanks [sic] you for your continuing help,
…
The applicant said that he had two more letters in the same vein at home that he had not brought to the hearing. In the light of that indication and a concession by the second respondent that the issue of an interpreter was one that should properly be probed, the proceedings were adjourned to enable the applicant to produce the additional material and for the second respondent to respond to it.
On 21 June 2012, the applicant filed one letter dated 12 March 2012 in which reference is made to an interpreter, and further written submissions that were not directly relevant to the discrete issue being considered. The letter insofar as it related to an interpreter says the following:
I rang your office today to say I cannot attend Dr. Terace or Dr. Wright's appointments on the 21st and 28th March as I have appointments on those days. I asked your office to reschedule those appointments …
… I would also like to formally request an interpreter for these appointments. I have requested this since 2007 and interpreters have not been provided. The QBE doctors were unable to understand me when I described my symptoms to them and claimed in person and in their reports that I never requested the service.
It is not difficult for them to arrange this through the state translating service and it can occur through telephone on speakerphone. The service is usually booked ahead and is free. There is no excuse for them not to provide this service if requested.
Thank you for your assistance in this matter.
…
Having clarified the ambit of its response at a further directions hearing, the second respondent filed an affidavit from the case manager in which it addressed the issue of the applicant's need for an interpreter.
I have read all the material that has been filed by the applicant and the second respondent since this matter was last before me in June. It seems to me that, at this stage in the proceeding, the applicant is able to demonstrate that the issue of provision of interpreters at medical assessments he was required to attend was a live issue prior to the relevant period commencing in September 2010.
The Tribunal is able to draw this preliminary conclusion because of the contents of the medical reports that predate August 2010, in which reference is made to an interpreter being present throughout the appointment.
The applicant's letter to his solicitor dated 29 December 2010 is further evidence upon which the applicant would rely at a hearing, that he persisted in his requests for the services of an interpreter to be provided at medical appointments. I note the contents of the letter dated 12 March 2012, in which the same refrain relating to the provision of interpreters is repeated, but I note that this letter falls well outside the relevant time frame.
In response to the applicant's further submissions in relation to the issue of providing an interpreter, the second respondent says the following, at para 4:
… it is relevant that the applicant has attended his own doctors and consultations with rehabilitation providers and others, without requesting an interpreter on any of those occasions.
That fact is not in dispute.
At para 10, he notes that the applicant attended an appointment with Dr Terace in February 2009 (so, predating the relevant period) for which a Turkish interpreter was arranged because a formal request for one had been received from the applicant's solicitor in a letter dated 27 January 2009.
In view of that request having been made, the second respondent was on notice at least from February 2009 that the applicant was someone for whom the services of an interpreter were required at medical appointments. The second respondent has obtained information from the applicant's solicitor that supports the applicant's case, that he requested the services of an interpreter be provided on a number of occasions.
There is reference in the second respondent's submissions (paras 22 24) to conversations between the applicant's solicitor and the second respondent's case manager, regarding the issue of a Turkish interpreter in the period December 2010 and January 2011.
There is also reference (para 28) to the assumption made by the second respondent's case manager, that someone from the applicant's solicitor's offices would arrange for an interpreter to be present, as they had done in the past. So, there is common ground between the parties that the issue of whether or not an interpreter should be provided was discussed during the relevant period.
The substance of the second respondent's submissions with regard to the issue of interpreters is as follows. Firstly, that the onus of requesting an interpreter and ensuring one was provided lay with the applicant. In saying that the onus lay with the applicant, what is said, in summary, is this: when the applicant attended an appointment at which there was no interpreter present, he had a choice as to whether to go ahead with the assessment in the absence of an interpreter, or whether to say 'I need another appointment at which an interpreter must be present'.
Secondly, that whether an interpreter was provided or not is really neither here nor there, because the conclusions reached by the doctors were based on their observations and assessment of the applicant's medical condition. At para 29, the second respondent submits the following - he refers to a report dated 17 January 2011 from Mr Home, in which Mr Home says on the first page of the report that:
… the history was obtained directly from the applicant who stated he did not require an interpreter for the assessment, although one had been apparently been requested. …
According to the second respondent, as the applicant stated specifically that he did not require an interpreter for the assessment, there can be no discrimination by the failure to provide one. The applicant says Mr Home did not report the fact that he had told him that his kidney function was now compromised as a result of painkilling drugs. He tried to explain this to him. At para 30, the second respondent goes on to say:
There is nothing to suggest Mr Home did not hear and understand this comment from the applicant. The close analysis of Mr Home's report indicates that he did not recommend any medication for the applicant and it would not have been relevant to the determination of the applicant's occupational capacity. …
The second respondent submits that the substance of the complaint referred to in the additional material provided by the applicant relates to WorkCover's failure to provide an interpreter for the hearings in relation to the applicant's claim, or the decision to suspend payments. It seems to me that what did or did not take place at hearings relating to the WorkCover claim is a matter beyond the Tribunal's remit. It seems to me to be inappropriate for the Tribunal to consider the process by which an arbitrator or a registrar reached a conclusion about matters before them under different legislation.
The relevant legal principles
A) Impairment discrimination in the provision of services
In order to succeed in his complaint, the applicant needs to prove that the first respondent discriminated against him on the ground of impairment in the provision of services, pursuant to s 66A and s 66K of the EO Act.
Section 66A of the EO Act provides:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of -
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
…
Section 66K of the EO Act provides:
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment -
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person.
To succeed in his claim of unlawful discrimination on the ground of impairment, the applicant must not only demonstrate that he was treated less favourably than a person without his impairment would have been treated in circumstances that are the same or not materially different, but must also establish that his impairment was the reason for the less favourable treatment. To that end, he must establish that there is a causal link between his impairment and the alleged less favourable treatment.
B) Race discrimination in the provision of services
In order to succeed in his complaint, the applicant needs to prove that the second respondent discriminated against him on the ground of race in the provision of services, pursuant to s 36 and s 46 of the EO Act.
Section 36 of the EO Act provides:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of -
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator -
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
…
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 46 of the EO Act provides:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race -
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person.
To succeed in his claim of unlawful discrimination on the ground of race, the applicant must not only demonstrate that he was treated less favourably than a person of a different race would have been treated in circumstances that are the same or not materially different, but must also establish that his race was the reason for the less favourable treatment. To that end, he must establish that there is a causal link between his race and the alleged less favourable treatment.
The respondents accept that, where an application to strike out the proceeding is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by the applicant will be made out, and to consider, in that light, whether the proceeding is misconceived or lacking in substance: see Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 (Ambrus) at [14]; also Laurent and Commissioner of Police [2009] WASAT 254 (Laurent).Deputy President Judge Chaney, as he then was, said the following in Ambrus, at [8], when discussing the principle to be applied when considering an application to strike out a proceeding:
… the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed. …
The term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of law or fact.
In considering the Tribunal's power under s 47 of the State Administrative Tribunal Act 2004 (WA) in Laurent, Deputy President Judge Pritchard, as she then was, said the following, at [18]:
The power in s 47 of the [State Administrative Tribunal Act 2004 (WA)] has been exercised infrequently by the Tribunal. That is not surprising. The Tribunal is not bound by the practices or procedures applicable to courts of record, and it is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms: s 32(2) of the [State Administrative Tribunal Act 2004 (WA)]. Consistent with the informality of the Tribunal's procedures, proceedings before the Tribunal are not conducted by reference to formal pleadings. In this context, any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when the party whose case is the subject of an application under s 47 is selfrepresented, does not have the benefit of legal representation or legal training, and may have difficulty in precisely setting out their claim in writing.
In considering the Tribunal's ability to strike out part of the proceeding, the Deputy President said the following, at [25] [27]:
Although s 47 does not expressly permit part of a proceeding to be struck out, in my view, on its proper construction, s 47 of the [State Administrative Tribunal Act 2004 (WA)] does incorporate such a power. First, s 47 permits a proceeding to be 'dismissed' or 'struck out'. The word 'dismiss' means, amongst other things, to 'send out of court; deny further hearing to (a legal action or claim)' (Shorter Oxford English Dictionary, 6th ed, 2007). The power in s 47 to dismiss a proceeding therefore contemplates the denial of any further hearing of that proceeding in the Tribunal. On the other hand, the words 'strike out' mean to 'cancel or erase by or as by a stroke of a pen; remove from a record, text, list' (Shorter Oxford English Dictionary). The power to 'strike out' a proceeding therefore appears capable of application both to the proceeding as a whole or to particular parts of the proceeding.
Secondly, [insofar] as the term 'strike out' is capable of application to the entirety of a proceeding, clearly there is an overlap between that power and the power to dismiss a proceeding. It is a well recognised principle of statutory construction that all words used in a statute must be given meaning and effect: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ). The fact that the Parliament has given the Tribunal the power both to 'dismiss' or to 'strike out' a proceeding suggests that the terms used have different work to do. That supports the conclusion that the power to 'strike out' should be understood as pertaining to a part of a proceeding as well as to the entirety of a proceeding.
Thirdly, a 'proceeding' in the Tribunal is effectively the sum of the different allegations or issues it raises. From that perspective, the power to dismiss or strike out a proceeding must necessarily include the power to dismiss or strike out part of that proceeding.
The facts agreed and assumed
There is a reasonable measure of agreement between the parties about the facts central to the single complaint.
For the purposes of this application to strike out the proceeding, the Tribunal will assume that the applicant will be able to establish the following facts:
•he sustained an injury to his leg in an accident in the workplace on 1 November 2007;
•he received treatment for his injury;
•he believes the quality of the treatment he received was poor;
•he made a claim for workers' compensation arising from the injury;
•he attended a number of independent medical assessments in connection with his claim;
•his first language is Turkish;
•he requested the services of an interpreter be provided at the medical assessments;
•an interpreter was provided on an ad hoc basis;
•he complained about the quality of the medical assessments;
•he did not return to work; and
•his claim for workers' compensation was dismissed in 2012.
So, the Tribunal assumes that the applicant will establish, on the balance of probabilities, that he suffers from an impairment in the form of a permanent injury to his leg. It will also assume that he received treatment for his injury and that the quality of that treatment was poor, as he claims.
The Tribunal also assumes that the applicant will establish that his first language is Turkish, that he requested the services of an interpreter at medical assessments and that the response to these requests was inconsistent. As a result, on the occasions when the applicant was required to communicate in English, he did so to his detriment.
Conclusion
It seems to the Tribunal that the applicant's belief that he was the victim of discrimination when, on his case, he received poor medical treatment or was assessed incorrectly, is misconceived. Poor medical treatment and inaccurate diagnoses may found claims of medical negligence, but they do not found claims of unlawful discrimination. Had the applicant been refused treatment for any reasons connected with his injury, the position may have been different.
The complaint of discrimination on the ground of race is one that causes the Tribunal some concern. This is because the second respondent took an inconsistent approach to the applicant's requests for an interpreter to be provided. There is clear evidence that, on occasions, the applicant requested an interpreter be provided. There is also evidence that one was provided at medical assessments on occasions. There is further evidence that the second respondent regarded the provision of an interpreter as a matter to which the applicant should attend himself.
It seems to the Tribunal that a fundamental issue of principle, as to whether or not the applicant was capable of communicating effectively in spoken English, has become lost in a debate about matters of detail as to how practical arrangements would be put in place to address this issue.
The inconsistent approach to this issue could lay the foundation for a claim of indirect discrimination because, whilst the applicant would appear to be fluent in the English language on paper, there is no guarantee that his oral skills are the same. The applicant's complaint that he found the questions put to him by consultants at interview difficult to understand, and that he thought that he had failed to adequately convey the nature and extent of his pain and suffering, may have arisen because of the language barrier. To this end, the Tribunal is unable to strike out that part of the proceeding that relates to discrimination on the ground of race.
Order
On the application to strike out the proceeding, it is ordered that:
1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), the claim of discrimination on the ground of impairment is struck out as being misconceived.
2.The claim of discrimination on the grounds of race in the provision of services, being a requirement that the applicant communicate in English at medical assessments arranged by the second respondent, is referred to mediation on 6 August 2012 at 2 pm, for a duration of 3 hours.
3.The first respondent is discharged as a respondent in this proceeding.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D TAYLOR, SENIOR MEMBER
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