Khader v Rail Corporation NSW

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Khader v Rail Corporation NSW [2012] NSWADT 32
Hearing dates:	15 to 18 August 2011,6 September 2011
Decision date:	02 March 2012
Jurisdiction:	Equal Opportunity Division
Before:	Judicial Member C Huntsman Non-Judicial Member J Schwager Non-Judicial Member M Nasir
Decision:	The application is dismissed
Catchwords:	Race discrimination; victimisation; inferences; whether referral for heath assessment was victimisation
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5; Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20; Dutt v Central Coast Area Health Service [2002] NSWADT 133; Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Category:	Principal judgment
Parties:	Mr Mahmoud Khader, Applicant RailCorp, Respondent
Representation:	Mr Ginters, Respondent The applicant in person Henry Davis York for the respondent
File Number(s):	091086

REASONS

Background

1. On 14 July 2008 the applicant, Mr Khader, made a complaint to the Anti-Discrimination Board of race discrimination in his employment by RailCorp, the respondent. Mr Khader had been employed by RailCorp since 1979, and as a train guard since 1983. On 25 August 2008 further information was received by the Anti-Discrimination Board (the Board) from the applicant. The complaint related to alleged harassing behaviour towards the applicant from various work colleagues, particularly train drivers, over a number of years. The Board determined that only the parts of the applicant's complaint occurring on or after 14 July 2007, were accepted for investigation, namely an incident on 15 July 2007 and an incident on 5 November 2007. Following the second incident on 5 November 2007, the applicant was referred to HealthQuest for a health assessment by the respondent. The purpose of the assessment, according to the respondent, was to establish the applicant's physical and psychological health and fitness to continue his rail safety duties.

1. During the course of the Board's investigation, the Board formed the view that Mr Khader was also making allegations of victimisation. The Board determined that the applicant was making a claim that, as a result of bringing a complaint of race discrimination to the respondent's attention, he had been victimised in that he had been referred to HealthQuest (for medical assessment) and declared unfit despite a recommendation to the contrary. The respondent denied any discrimination and victimisation. On 24 June 2009 the President of the Anti-Discrimination Board declined the complaint of race discrimination in relation to the 5 November 2007 incident. The Board subsequently referred the complaints of racial discrimination in employment in relation to the incident of 15 July 2007 and victimisation, to the tribunal for determination.

1. Prior to the hearing of this matter a number of case conferences were held and directions made for the filing of material by the parties. At no time was any determination made that the complaint referred to the tribunal by the Board be varied/application amended as to the…