Khader v Rail Corporation NSW - [2012] NSWADT 32

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

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.

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.

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 period of the complaint, or in relation to the President's decision to decline the complaint of race discrimination in relation to the 5 November 2007 incident. At the commencement of the hearing some time was spent ensuring the parties' understanding of the application before the tribunal, being the complaints referred by the Board. The matters for the tribunal to determine were the complaint of race discrimination in relation to the incident of 15 July 2007, and the victimisation complaint which was based on the referral to HealthQuest. Other material filed by the parties went to some background information to assist the tribunal to understand the evidence. As discussed further below some time was spent in the hearing on medical evidence, the relevance of that evidence to the tribunal's determinations will be discussed below.

The evidence

At the hearing, oral evidence was given by the applicant, in addition to written material, including medical reports, filed by the applicant with the Board and the tribunal; and the witnesses Dr Kunchapudi and Dr Napper gave oral testimony to the tribunal by telephone. The respondent submitted considerable written material including medical reports and written affidavits and oral evidence from the following witnesses: Mr Atchinson, train guard; Ms Stuardo, human resources manager with the respondent; Mr Morton, solicitor with the respondent; Dr Samuell, and the tribunal heard oral evidence from the following witnesses who were summonsed to attend: Mr O'Neill, Psychologist, Mr Flaherty, traindriver; Ms Harpur, duty manager. The evidence will be further discussed below.

The incident of 15 July 2007

The applicant provided detail of this incident in his oral evidence and written evidence including in a letter to Mr Patterson of RailCorp's Workplace Conduct Unit, dated 7 August 2007, and in his statement to the Anti- Discrimination Board of 13 July 2008. Mr Khader states he worked for RailCorp since 1979, has been a guard since 1983 and working at various locations, and commenced at North Sydney depot in August 2005. He detailed incidents occurring at North Sydney depot. Where relevant, the tribunal will refer to these matters, as they do not form part of the complaint, however the tribunal has considered the applicant's evidence in its entirety. The applicant states in his letter to the WorkPlace Conduct Unit that on 15 July 2007 at 9:23 am at Blacktown station, platform one, while working as a guard, he stood at his compartment door waiting for the train to depart at 9:24 am. He saw train guard Aitchison standing opposite him on platform two, looking at him. The applicant states as follows:

"I approached him and said "how are you going" and shook his hand. He was unwelcoming and did not respond to my greeting. He was reluctant to shake hands. So I returned my train he then approached me and stood in front of my compartment door. He approached me and stood in front of me and threw a bit of paper at me and said in a despising manner "Burn this flag." And walked back to where he was standing before on platform two. I picked up the piece of paper from the floor, approached him and placed it on his shoulder and said, "you can have your flag". The paper fell on the platform and I returned to my train and departed at 9.24am."

The applicant goes on to detail that this was the fifth time, in a period of about 10 months prior to this date, in which Mr Aitchison asked him to burn the flag. He said he laughed off the incident the first three times. The applicant states in his statement to the Anti-Discrimination Board:

"he meant by flag the Australian flag. He thinks of me as a flag burner because my ethnic Middle Eastern origin. This is his method of trying to humiliate me as anti-Australian and all the other adjectives attached to burning the flag. By doing so he cast himself high and superior. Hence the spiteful book he wears every occasion... At tin kick short of a Nazi."

The applicant states that he relies on the CCTV footage to support his account, the CCTV footage was however unavailable at the hearing - the issue of the availability of footage will be further discussed below. Under cross-examination the applicant agreed that he was at Blacktown station for one or two minutes between 9.23am and 9.24am. He was asked whether all that he had described as occurring with Mr Aitchison could have occurred in 1 or 2 minutes. He stated that was what happenned. If was put to the applicant that Mr Aitchison categorically denied this occurring, and he responded that this was why he required the CCTV footage to be kept.

Mr Aitchison also gave sworn oral evidence to the tribunal and a written affidavit, detailing this incident. Mr Aitchison says that he first met the applicant in around 2003 when he was training to become a guard. The applicant was his trainer on a few occasions. After he commenced guard duties in around July 2003 he saw the applicant on a handful of occasions. He indicated that on some occasions they had enjoyed each other's company and conversed. Mr Aitchison says that on 18 August 2008 he received a telephone call on his employer- supplied mobile telephone. He says that the call was from the applicant who asked him "why did you tell me to burn the flag?" . Mr Aitchison indicated that he questioned what the applicant meant, and that the applicant stated "you told me to burn the flag. Back in June or July 2007. You threw paper at me and told me to burn the flag. What did you mean when you said that?" Mr Aitchison gives evidence of telling the applicant that he did not know what he was talking about. He says he thought at the time, that the call was strange, and because of this kept a record of the time and date of the call in his mobile phone. He had at that time, no recollection of any incident involving the applicant as alleged.

About one month later, on or around 17 September 2008, Mr Aitchison found a handwritten note addressed to him, from the applicant, in his pigeonhole at the depot. This was the first contact he had with the applicant since the phone call. Mr Aitchison annexed a copy of the note to his affidavit. Later on the same day he went to see the Crew Area Manager and had a conversation, which he detailed in his statement. He was requested by the Crew Area Manager to write a statement and he did so and gave it the Crew Area Manager on the following day. He subsequently became aware of other allegations made by the applicant, in relation to him, when he met with the respondent's legal representatives in February 2010. He was then made aware of allegations in various letters written by the applicant to the respondent's Workplace Conduct Unit, and to the Anti-Discrimination Board. In response to the allegations Mr Aitchison says that the incident of throwing a piece of paper at the applicant did not happen. He has never said to the applicant words to the effect of "burn the flag". He says he is aware the applicant says he has said those words on around five occasions and denies doing so. He has no recollection of the applicant ever placing a piece of paper on his shoulder, and if such an event occurred he believed he would remember it because it is strange. He denies the applicant ever saying to him words to the effect of "you can have your flag". He notes the allegation by the applicant that he is adamant to humiliate the applicant every time they meet and he strenuously denies the allegation. He notes the statement by the applicant, that Mr Aitchison "is determined to continue this bastardisation" , and denies that allegation. He refers to having witnessed bullies at school and to his dislike of bullying behaviour.

In the letter which Mr Aitchison wrote for the Crew Area Manager, which is attached to his affidavit, he details receiving the phone call from the applicant. He states:

"I am not sure if he has got me confused with someone else or if this incident actually took place but it was certainly not me and I find it offensive to have been accused of saying such a thing. No matter how involved a discussion I might have I would never resort to the somewhat aggressive action of throwing something at a person. Secondly, and most importantly, I would never tell anyone to "burn the flag" even in jest....... I told him that such conversation never happened and didn't think much of it nor did I hear from him again until I found today the attached letter....I find his repeated claims troublesome and quite frankly I don't understand where he's coming from but this needs to stop. I have known Mick since I was a trainee guard and he was my trainer and I've known him to be jovial and insightful. I have not seen him since hearing he had gone on light duties and I don't know what has happened in his life since but hold out the best for him and wish him well."

Mr Aitchison's oral evidence was consistent with his written statement. Mr Aitchison's account was not impugned during cross-examination by the applicant. The tribunal notes there is a clear divergence in the account of the applicant and the witness, Mr Aitchison, and this will be further discussed below.

Events after 15 July 2007

A chronology of events occurring after 15 July 2007, as recorded in correspondence and various documents, is provided in the affidavit of Ms Stuardo and the attachments to the affidavit. The applicant did not dispute the contents of this affidavit but did dispute the basis on which various actions were taken by the respondent. The applicant also provided detail about these events. Ms Stuardo commenced as a human resources manager for the respondent on 15 March 2010. At that time a period of unplanned extended leave was taken by Ms Sue Ryan, the previous human resources manager (this is further discussed below) . In her role Ms Stuardo is responsible for day-to-day human resources management of various RailCorp employees, including the applicant. In preparing the affidavit she reviewed personnel and other files. A significant number of documents are annexed to her affidavit, including copies of correspondence, emails and medical reports.

Ms Stuardo details that on or around 20 July 2007, Mr Khader made a report to RailCorp's Workers Compensation Services Injury Hotline in relation to an alleged incident on 15 July 2007. A copy of the incident report form completed on or around 20 July is annexed to the affidavit. The applicant subsequently provided to the respondent a number of WorkCover medical certificates which stated that he was unfit for duties from 30 July 2007 to 31 October 2007, copies of the medical certificates are annexed to the affidavit. Around 7 August 2007, the applicant submitted a written complaint to the respondent's Workplace Conduct Unit (WCU) which included reference to the alleged incident on 15 July 2007. The complaint is annexed to the affidavit. On or around 29 August 2007, the applicant completed a Workers Compensation Claim Form in relation to the alleged incident on 15 July 2007 (copy of form attached). The applicant states he was then was involved with RailCorp Compensation Services who organised an assessment by forensic psychogist Ms Higgins, and after Ms Higgins diagnosed him, liability was accepted by the Respondent and he was paid workers compensation, and that a "speedy return to work plan" was the focus (applicant's points of claim).

Ms Stuardo states that in September 2007, the Depot Manager, Mr Prince, prepared a "supervisors reported injury" report in relation to the alleged incident on 15 July 2007. In September 2007, the respondent received a medical report of 30 August 2007 from Dr Iwanwoski. Mr Khader participated in a recorded interview with WCU on 12 September 2007 (transcript of interview attached to affidavit). The applicant subsequently provided a WorkCover medical certificate stating he was fit for suitable duties (but not pre-injury duties) from 2 November 2007 to 31 December 2007. The relevant medical certificate, signed by Dr Iwanwoski, dated 2 November 2007, is annexed to the affidavit of Ms Stuardo.

Ms Stuardo' s affidavit details a further sequence of events: on 5 November 2007 Mr Khader commenced suitable duties at RailCorp's head office, Lee Street, Sydney. There was a return to work plan and injury management plan. At approximately 8:30 am on 5 November 2007, Mr Khader reported for duty to Mr Ken Stephenson at Lee Street. Within approximately one hour of commencing duties, Mr Khader alleged that he had been subjected to "harassment" due to "another employee... pointing at him and laughing" . Mr Khader made a report to the WCS Injury Hotline. On 5 November 2007, Mr Stephenson conducted a local level investigation into the alleged incident that morning. A copy of Mr Stevenson's report is annexed to the affidavit. On or around 6 November 2007, Mr Khader provided to RailCorp a WorkCover medical certificate from Dr Iwanwoski in relation to the alleged incident of 5 November 2007, stating he was unfit for duties from 6 November to 30 November 2007. Mr Khader told the tribunal of his belief that the work collegues had been mocking him when they said "look, look, look' and he said they were pointing at him. In his written statement to the Anti-Discrimination Board the applicant states that this was racial discrimination "My ethnic look was a subject of ridicule and urged the other employee to join in". In his oral evidence the applicant agreed that he subsequently cancelled two meetings with RailCorp management to discuss the issues.

Ms Stuardo states that on 7 November 2007 Mr Khader was referred to RailCorp's designated health care provider, HealthQuest, for a "triggered" health assessment including a psychological assessment. The referral was by letter from Ms Sue Ryan of 7 November 2007, to HealthQuest. This is Annexure KJS-14 to Ms Stuardo's affidavit. As this referral to HealthQuest is a major part of the applicant's case of victimisation it is useful to set the letter out in full in these Reasons for Decision:

"I am sending Mr Mahmoud (Mick) Khader for a health assessment. Mr Khader is employed by Rail Corp as a Train Guard.

Mr Khader reported a psychological injury to the Injury Hotline on 15 July 2007. He attributed the injury to harassment in the workplace sustained over a period of two years. He had not complained to management or discussed his concerns at any time prior to phoning the injury hotline. After lodging the injury he refused to talk to his manager or to anyone in Train Crewing. Because he would not talk to us we referred his allegations to the Workplace Conduct Unit. Mr Khader then provided the Manager of the Workplace Conduct Unit a letter dated 7 August 2007 with further information about the alleged harassment (Attachment 1). An interview was held with Mr Khader on 12 September 2007. A transcript of the interview is attached (2). You will see from the transcript of the interview that Mr Khader was not able to articulate his complaint with the specific information required to conduct a formal enquiry.

The Work Place Conduct Unit did not proceed any further with Mr Khader's complaint and referred it back to Train Crewing to be dealt with.

I have decided to refer Mr Khader to you for assessment, including a psychological assessment, because Mr Khader remarked at the above mentioned interview that he is in "remission" and I do not know what this means in the context of his current health.

When reading Mr Khader's complaint and the transcript of interview is apparent that many of the incidents are Mr Khader's interpretation of what is occurring around him, to the extent that he "fills in the gaps" with negative thoughts and then attributes those thoughts to others.

Notwithstanding the unusual aspects of Mr Khader's version of events, on the face of things it appears that he may be the victim of harassment or bullying. Accordingly we have provided him with alternative duties (attachment 3) and had planned to discuss with him ways to address his problems. Before this could happen he lodged a new notification of notification of injury (attachment 4), claiming that on commencing work (on his first day in the office) two members of staff were pointing at him and laughing. He went home and has since cancelled two appointments to meet with us. This incident and Mr Khader's new injury along with his refusal to meet with us seems out of proportion with what he says occurred. I note that we have not had an opportunity to get further information from him and that makes it difficult to ascertain what he experienced at the time. We have commenced interviews the staff involved and our preliminary enquiries found that no one remembers the incident nor did anyone direct any laughter or point at Mr Khader. We also know that the time of the injury, as reported by Mr Khader, is incorrect. He reported the injury as occurring at 9:30 am on 5th November 2007. This is not correct because he was in a meeting with his new Supervisor at that time. It could be that Mr Khader is under duress and we attempted to return him to work too soon.

I have written to Mr Khader (by registered post) have sent him a copy of this letter and the attachments so that he is fully informed in respect of his assessment. Thank you the seeing Mr Khader, this is a difficult situation and it has been difficult to establish a way forward for Mr Khader. I look forward to receiving your report in due course".

The HealthQuest assessment report of 3 January 2008 states

"according to a letter (7 November 2007) to Mr Khader from Ms Sue Ryan, his referral to HealthQuest was triggered due to his absence from the workplace and refusal to attend meetings regarding his report of harassment in the workplace."

The human resources manager, Ms Ryan, wrote to Mr Khader on 7 November 2007. RailCorp received a report dated 15 November 2007, from Clinical Psychologist, Mr Thomas O'Neill, in relation to the applicant. Around 5 December 2007 RailCorp received a report dated 30 November 2007 from Clinical And Forensic Psychiatrist, Dr Samuell, in relation to Mr Khader. On 7 December 2007, Ms Joshua, another RailCorp employee, sent an e-mail to Ms Ryan containing a summary of Dr Samuel's opinion and later on 7 December 2007 Ms Ryan caused Ms Joshua's e-mail to be provided to HealthQuest for their consideration (copies of e-mails are attached affidavit). Ms Joshua's e-mail stated:

"the following is a brief summary of Dr Samuell'[s opinion:

- Mr Khader is most definitely unwell, he has a psychotic disorder and it is most likely to be schizophrenia.

- He should be on antipsychotic medication and if he has an underlying brain disorder, this should be treated.

- Given his age and the severity of the symptoms, Dr Samuell is pessemistic about Mr Khader's prognosis, Mr Khader is not fit to return to work at present due to the extent of his psychosis, he may never return to work.

Based on the above information provided by Dr Samuell, the claims officers will be reviewing ongoing liability for this injury. I will keep you posted on this as soon as I am advised".

Ms Stuardo details that on 21 December 2007 RailCorp received a report dated 19 December 2007 from Mr Khader's treating clinical psychiatrist, Dr Eddie So. On approximately 3 January 2008, HealthQuest provided RailCorp with a report in relation to Mr Khader. Ms Ryan subsequently wrote to HealthQueston 7 January 2008 requesting a review of the 3 January 2008 report in the light of Dr Samuell's report and Dr So's report, and provided copies of those reports. In her correspondence she noted the conflict between HealthQuest opinion that Mr Khader was fit and the opinions of Dr Samuell and Dr So that he was not. She noted "the safety implications" of Mr Khader's condition. She also expresses concern that Mr Khader may not be receiving recommended medication or frequent follow-up and psychological intervention as recommended.

On 7 January 2008 Ms Ryan also wrote to Mr Khader in relation to the review of the HealthQuest report. On 11 January 2008 HealthQuest issued an "Assessment Report (Amended Recommendations)" dated 11 January 2008. Ms Ryan then wrote to Mr Khader in relation to HealthQuest's amended opinion that he was temporarily unfit for duties. RailCorp received an Amended Assessment Report dated 14 February 2008 from HealthQuest. Ms Ryan wrote to Mr Khader, by registered post, on 18 February 2008 noting the need for medical certificates for any sick leave claimed. She enclosed sick leave forms and timesheets. She stated that she needed the treating psychiatrist, Dr So, to include on medical certificates an indication of Mr Khader's fitness for work and any medication he is taking, so they have an idea of his progress.

"In addition I am requesting that either your treating Doctor or Psychiatrist provided confirmation that you are receiving ongoing management of your condition. When you get a clearance from your treating psychiatrist for a return to duty I will send you for a fitness to continue with the accredited provider under the National Standard for Rail Safety Workers. Depending on when you are found fit the assessment that may be with HealthQuest or with our new provider, Health for Industry."

Mr Khader provided RailCorp with a medical certificate from Dr Kunchapudi (his General Practitioner) stating he was not fit for work from 29 January 2008 to 28 April 2008. Further medical certificates were provided by the applicant to RailCorp for periods from 28 April 2008 up until 27 August 2008. In May 2008 Mr Khader was referred by RailCorp for a fitness for duty assessment by the new designated health care provider, Health For Industry (HFI) and on 17 June 2008 HFI provided RailCorp with their report. The report by Mr Khader's treating psychiatrist,Dr Napper, of 23 July 2008, is also attached to the affidavit. In March 2010 RailCorp received a report of fitness for duty from Medibank Health Solutions certifying Mr Khader fit for guard duties. In April 2010 RailCorp received a "Health Assessment for Rail Safety Worker" dated 6 April 2010, certifying Mr Khader fit for Category 2 Rail Safety Worker duties (that is, as a Guard), subject to a triggered assessment review in October 2010. The affidavit states, that at the time of writing the affidavit, Mr Khader was in the process, subject to a period of refresher training, of being returned to full Guard duties located at Central Station.

In the affidavit, Ms Stuardo details the requirements of RailCorp, according to legislation (the Rail Safety Act 2002 (NSW)) to conduct medical assessments. Employees can be required to undertake routine periodic assessments, and also specific triggered assessments, which usually arise out of a particular concern about an employee's health. Mr Khader's work as a Train Guard is rail safety work, in Ms Stuardo' view and Rail Corp's view, pursuant to the Rail Safety Act 2002. Ms Stuardo also refers to the published "National Standard for Health Assessment Of Rail Safety Workers " published by the National Transport Commission in May 2004 which is the standard adopted in New South Wales. Ms Stuardo notes the obligations of RailCorp to ensure safety, in the context of the applicable legislation and the Standards, and describes these obligations in her affidavit. She states that RailCorp has published its own "Management Standard for Health Assessment of Rail Safety Workers" (the RailCorp Standards) in accordance with this. She notes that the RailCorp Standards refer to "agreed listed triggers" in relation to triggered health assessments, which includes among other things sick leave patterns, patterns of absenteeism and certain workplace incidents or patterns or incidents.

The witness, Mr Flaherty, train driver, RailCorp, who worked at North Sydney station, gave oral evidence to the Tribunal. He said he had been a driver for 31 years and had worked with Mr Khader several times over the years. He was asked to say what happened on 12 November 2008. Mr Flaherty stated he got involved in banter with the duty manager, he did not recall the details. Another driver entered the room at the same time and attempt to get involved in the banter. Mr Flaherty said that he said, "you're not going to harass me like you harassed Guard Khader". The driver's name was Reid. Mr Flaherty stated he told Driver Reid that he was referring to Mr Khader's case. He said he was referring to the case because rumours were going around the depo. Driver Reid's response was that Guard Khader had blamed him, that he didn't do it, another driver did. Mr Flaherty said he said he had nothing more to add to his evidence as the conversation disintegrated into a slanging match.

Events prior to 15 July - the "background"

The applicant provided evidence about events occurring before 15 July 2007, which were not accepted for investigation by the Anti - Discrimination Board, and therefore were not referred to the Tribunal, but were part of the applicant's case as background material. The applicant was cross-examined by the respondent's representative about a number of these incidents, much of the cross-examination going to the basis of the applicant's perception of the incidents. Given the reliance of the applicant on this background material, and given that the respondent cross examined the applicant about this material, and also given that the interview about the applicant's complaints - including the background events - is connected to his victimisation claim, then the tribunal finds it appropriate to provide some detail of these events, and the observations of the tribunal in relation to same. It is important to note, however, that these matters were not for determination in the current proceedings, the tribunal makes observations of the evidence about these background events given some reliance was placed on the evidence, by the parties, as background relevant to the tribunal's understanding of the evidence relating to the complaint referred.

These included events allegedly occurring in 2006: there was one event where the applicant states heard the words "Black shit" said over the PA; another where he said co-workers referred to him using a RPG (which he stated he knew was a reference to a rocket propelled grenade), another involving a shredded timesheet, and various other incidents. These incidents are set out in the applicant's letter of 7 August 2007 to the manager of the Workplace Conduct Unit. The applicant states in the two years since being transferred from Gosford to North Sydney depot in August 2005 he was subjected to harassment, bullying, abuse, racial abuse, targeting and intimidation on 14 occasions by two drivers, two duty managers and a Guard.

He states the first incident occurred a few weeks after he started at North Sydney when a driver looked like he was verbally lashing out at the applicant in front of a trainee, and then when the trainee walked away, the driver transformed to a normal person. The applicant felt intimidated when the driver was appearing to lash out at him. There is no mention, in the applicant's account of this incident, of any racial abuse or racial basis for the behaviour. Nor is there any objective detail provided of what constituted "lashing out" other than a statement that he appeared to lash out at him verbally and then he transformed into a normal person.

The second incident refers to damage to a timesheet, where the applicant states that it appeared to him that there were shredder blade cuts (from a paper shredding machine) on one side of the timesheet and no other timesheet was damaged. The applicant drew the attention of the Manager to the damage and the manager called it an accident. The evidence was that the time sheet could still be read and used. The tribunal considers that there was no evidence that this shredding was harassment of the applicant, and there was no evidence presented of a fact on which it could be inferred that the shredded timesheet was deliberate persecution/harassment of the applicant. The applicant appears to base his belief that it was harassment on the fact that no other timesheet was shredded. He does not appear willing to consider that it was an accident, as was indicated by the manager. Rather, it appears to the tribunal that in the absence of other evidence to cause the applicant to think a shredded timesheet was an act of malice against him, the applicant formed that conclusion with some certainty.

The third incident was a conversation in the manager's office where the applicant asked the female employee if she was once a Guard, and she said she was a second person. A driver overheard the conversation and told the applicant it was an insult to be called a Guard. There is no indication by the applicant of any racial basis for this comment. Rather it appears he suggests that drivers do not always treat guards with respect.

The next incident involved the applicant going to the manager's office to sign on, and finding duty manager Harper upset because the photocopy machine was not working. He was able to get the machine to work and then a driver walked into the office and the applicant thought he was not happy to see the applicant in the office. The applicant appears to suggest that there was then some laughing behind his back. No racial basis for this behaviour is advanced by the applicant or indicated in his account.

The applicant details that on the following day when he was signing on in the manager's office, the same driver walked in and the same duty manager was present and the applicant says he says to the driver "you were scared yesterday" referring to the driver's behaviour the previous day. There was no reply. The applicant states that after signing on he went down to platform 2 to where his train was stationed, and he saw another driver walking up from the car park to the office to sign on and a short time later he heard an announcement over the PA on platform 2 "black shit" . He says he recognised the voice as the driver who he had just seen going to the office. He says the announcement was made from the microphone in the manager's office where the driver and duty manager Harpur were also present. He then went to the office to investigate, and asked the duty manager who made the announcement, and she said she did not know, she said she was not in the office. The applicant states he met the driver a short time later and the applicant mentioned the PA announcement and that he had recognised the drivers' voice and the driver denied the incident.

Ms Harpur, duty manager, RailCorp, gave oral evidence to the tribunal. She was asked about an incident when an announcement was made over the PA system in January 2006. Ms Harper stated she did not recall this occurring. It was put to her by the applicant that driver Reid made the announcement. It was put to her that an announcement was directed to platform 2 and there was a train on the platform. Ms Harper stated that she does not recall this incident. She did not recall Mr Khader coming to the office and she did not recall Mr Khader speaking to her about a PA announcement. She stated the duty manager will record incidents that occur and she does not recall making any entry about such an incident and does not recall anything untoward happening. She said there was no unusual announcement, "my ears would have pricked up" at anything said which was untoward. It was put to her that she had heard an announcement using the words "black shit" and she stated that this did not occur in her presence, ever.

In relation to this incident the applicant gives no other evidence to indicate that he was the target of such a comment over the PA, other than his belief that it was directed at him. He gives evidence of such a belief in the absence of any evidence of a context or lead up to the event. On the evidence the comment was unusual and was made without any lead up or context. He believed that it was aimed at him as he was on the platform and he believed there was no-one else on the platform to whom the comment could relate. He does not countenance the possibility that he misheard the announcement. He says it was said in duty manager Harpur's presence yet she gave evidence to the tribunal that this did not occur. The applicant also states that he spoke to the driver who allegedly made the comment and when the driver denied making such a comment, it appears on the evidence that the applicant did not consider whether he could have misheard the announcement but remained certain of what he believed had occurred.

Another incident was detailed as occurring in March 2006, the applicant states that after signing on he entered the crew room, and driver Stewart and Duty Manager Papallo were standing outside the room. The applicant states that as he was about to exit the room he overheard driver Stewart say to duty manager Papallo "what is he doing inside?" and that Papallo said "I don't know". Stewart then said "I know, I'll shoot him" and the applicant was just walking by when this statement was made and he observed him to walk to the crew room, where the applicant was, "to express his intention to act". The applicant states that "Papallo upped the ante and said I'll use RPG which stands for rocket propelled grenade". The applicant did not say anything but discussed the incident later with Papallo who said "What RPG I don't know what RPG is". In other material submitted by the applicant he states that the reference to RPG was discrimination against him as being of Middle Eastern origin, being an implication that he is a terrorist because of his racial origins. The tribunal finds that the applicant was convinced that the comments were meant for him although he was in a different room, and he was certain that he correctly heard the statements which he alleged were made.

Another incident detailed by the applicant was that on one day when he was standing next to a hot water urn, Papello:

"rushed into the office, streaked in and streaked out past the applicant and loudly said "we want to look, maybe we are attacked by terrorists" . He was leaning forward, looking down the ground, almost between his feet. A strange way and place to look for terrorist indeed. It was unmistakably clear as he was reading out loud his thoughts as he passed me that he was targeting me because of my cultural origins."

In relation to this incident it does appear to tribunal that it is an example of the applicant holding a belief that he is a target of comments in the absence of objective evidence on which such a belief could be based - there was no evidence in the applicant's account to indicate that the comment made by a co-worker who "streaked in and out" of the applicant's presence, was referring to the applicant. The basis of his belief "It was unmistakably clear as he was reading aloud his thoughts as he passed me that he was targeting me" does not seem to the tribunal to be founded on objective evidence.

The applicant details an incident on 30 June 2006 when he saysthat after a journey which was without incident on the train at work, he observed driver Stewart walking towards him, looking angry, and that when walking close to the applicant Stewart threw a clenched fist in front the applicant's face but did not hit him. The applicant felt threatened. He then states that

"In a similar incident to that of the above"[ in late December 2006 ] the applicant was signing on in the Manager's office as usual] " DM Papallo and Dr Gary Ashton was standing outside the office. The familiar question popped up "what is he doing inside" and driver Ashton asked "I don't know, we don't want to incriminate ourselves".

The applicant states this is not a significant incident and he has no complaint against driver Ashton - he just mentions the incident to explain the culture of harassment and denial. The applicant then details the incident of 15 July 2007 (referred to above). He says as a result of all of these incidents and the culture of harassment he has suffered emotional meltdown, headaches and sleeplessness.

"I lose concentration as a result of the images and thoughts of these two years of bullying and abuse. My health and well-being is affected and use medication."

The background material detailed above relates to incidents which do not form part of the complaint referred to the tribunal and are not for determination in these proceedings. The evidence indicates that the applicant's version of one of the incidents is disputed by the witness, Ms Harpur, and was not supported by findings of workplace inquiries (although the applicant disputes the standard/adequacy of such inquiries). Some of the complaints by the applicant do not refer to a racial basis for the abuse, seeming to instead refer to the views of drivers that guards are inferior. There is reference by the applicant to a racial basis for some of the incidents (where there is reference to an RPG or to terrorists) however, these incidents rely on accepting the applicant's interpretation of what was said, and rely on the applicant's perception that such incidents were directed at him - a reading of the incidents as detailed by the applicant indicates that he believes he is subject of certain behaviour or comments, but a reading of the incidents as described by Mr Khader does not clearly indicate an objective basis for these beliefs. This issue is considered further by the tribunal below in these Reasons for Decision.

In relation to the background incidents there is no indication that Mr Aitchison was involved in any of the events prior to 15 July 2007 - he is not mentioned as having any role or involvement in the earlier "background" incidents relied upon by the applicant.

The medical evidence

Considerable medical evidence was placed before the tribunal in this matter, and medical and professional witnesses gave oral evidence at the hearing. Both the applicant and respondent relied on the medical evidence, for reasons discussed below.The Tribunal will refer in some detail to the main medical reports but will not summarise all of the medical evidence presented.

The report of Thomas O'Neill, 15 November 2007, Clinical Psychologist, states the report is an independent psychological opinion to assist in management of his claim (for workers compensation). Mr O'Neill also gave oral evidence to the tribunal and was subject to cross examination. In preparing his report Mr O'Neill had a copy of Mr Khader's complaints, and he also spoke by telephone with people from the workplace, being Ms Ryan, Mr Prince, and Mr Stevenson, and he attempted telephone contact (without sucess) with the regional crewing manager and also with the then general practitioner of Mr Khader, Dr Iwanwoski. Mr O'Neill described administering detailed assessment tools during the assessment process, during an appointment of over 3 hours. Mr O'Neill notes in relation to Mr Khader's complaints, that there are about 10 allegations of harassment and bullying, and when these are examined, many of them are non-specific and do not make straightforward references to racism, or to clear behaviour of harassment, bullying, abuse, targeting or intimidation. When discussed with Mr Khader:

"he said he quite often did not know what people's intentions were. However, he said that he made the assumption that all of his peers disliked people of Middle Eastern descent, and assumed he had connections with terrorists. When I asked him his reasons for coming to this conclusion, he questioned me as to what other reason could be available."

Mr O'Neill also noted Mr Khader's account that he felt harassed on his return to work on 5 November 2007, that two people in the workplace were laughing at him, and pointing a finger at him saying "look, look, look". He told Mr O'Neill he did not know what the employee was laughing about, but he was laughing at him. Mr Khader believed this was because he was of Middle Eastern descent. He believed this was another example of ongoing harassment, bullying and intimidation. Mr O'Neill concluded that Mr Khader presented as an individual with a likely Delusional Disorder, persecutory type.

"He strongly believes despite the lack of evidence that he is being purposefully harassed and bullied, and being the victim of racism for over two years. He believes the reason for this is that he is of Middle Eastern descent although he denied that anyone has ever specifically told him this. It is likely that these persecutory beliefs do generate intermittent and transient depressive and anxiety symptoms that lead to distress"

However, Mr O'Neill's view was despite the delusional disorder, Mr Khader was fit for normal duties and working hours and did not need any restrictions. Mr O'Neill noted that fundamentally this was an industrial issue, and he believed RailCorp Corp were following their due processes by treating this as a grievance that required investigation.

"Unfortunately Mr Khader has not made himself available to Human Resource and Management to talk these issues through further.

Mr O'Neill was of the view that Mr Khader's persecutory beliefs are extremely rigid and fixed.

As noted above, the tribunal had the benefit of Mr O'Neill's attendance at the hearing as a witness. The tribunal found that Mr O'Neill gave his evidence in a balanced and considered manner. His assessment was detailed, employed the use of objective assessment tools, was made during a lengthy appointment and he also sought collateral information from witnesses in the workplace and the applicant's treating doctor (although he was unsuccessful in contacting the doctor). He considered Mr Khader's complaints in detail and sought Mr Khader's views. In the tribunal's view Mr O'Neill's assessment was considered, detailed and objective and some weight should be given to his opinion on this basis.

Dr Samuell, Clinical Forensic Psychiatrist, provided a report dated 30 November 2007. Dr Samuell also gave oral evidence to the tribunal and was cross-examined. He was requested to review the applicant in relation to his claim for workers compensation. He records Mr Khader's account of his difficulties in the workplace. He stated that the applicant did not appear depressed. He stated that apart from delusions, Mr Khader had auditory hallucinations. Dr Samuell states:

"in my new opinion, Mr Khader is psychotic, he has both hallucinations and delusions. It is probable that he has a schizophrenic illness. The differential diagnosis include a mood disorder with psychotic features..."

Dr Samuell expresses the view that Mr Khader is not fit to return to work at present due to the extent of his psychosis and may never return to work.Dr Samuell, in his oral evidence to the tribunal maintained that psychiatric opinions, based on assessments done sometime after crucial events, must be given less weight, as they are not proximate in time to the event linked to the psychological or psychiatric symptoms. Under cross-examination by the applicant, it was put to Dr Samuell that he saw him for a very brief period of time and Dr Samuell did not agree that the period of time was brief, but did agree he had seen the applicant on one occasion.

Dr So, Consultant Psychiatrist, saw Mr Khader on referral from Mr Khader's general practitioner and assessed him on 18 December 2007. This assessment was conducted proximately to the event of 5 November 2007. Dr So notes the diagnosis of anxiety and depression by the GP in July, and that the applicant was not on any medication. Dr So states:

"in my opinion, the patient is suffering from a Depressive episode, moderate severity, likely untreated for years, in context of obsessional personality traits. The impact and bereavement from a failed marriage remains to be explored. Differential diagnosis included Delusional Disorder. An evolving Depression with psychotic features also needs to be considered. With the reported imageries, these are most probably symptoms of pseudo-- hallucinations that are mood dependent and congruent."

Dr So's recommendations included a course of antidepressant medication, and, in relation to work, a program with limited interpersonal exposure

"given that the patient's symptoms and stress are directly related to his interpersonal sensitivity"

Dr So further noted that if the condition destabilises with the emergence of systemised delusions or full-blown hallucinations in patient management should be seriously considered.

The HealthQuest report (of 3 January 2008) notes the history that Mr Khader was hit by a train on 20 September 1984 resulting in a head injury with loss of consciousness for four hours. A CT scan did not suggest intracranial bleeding or brain damage. However he continued to experience left-sided headaches. He had also been attacked by a passenger on 30 April 2000 suffering mouth and hand injuries. The HealthQuest report concludes:

"Mr Khader is suffering depressive and anxiety symptoms as a result of workplace stress. He is psychologically fit to return to work. He and his management still have a long way to go in resolving their differences in perspective regarding his allegations harassment and abuse at North Sydney in Hornsby.... This person is fit for the full range of duties of the substantive position. "

The HealthQuest report of 11 January 2008 refers to the reports of Dr Samuel and Dr So and concludes:

"Mr Khader is suffering depressive and anxiety symptoms. He is temporarily unfit to return to work. Mr Khader would need to maintain further management for his condition. This person is temporarily unfit to the full range of duties of the substantive position...... It is recommended that the employer requests review... in three months."

An amended assessment report by HealthQuest of 14 February 2008, for assessment date of 20 December 2007, notes that Mr Khader reports he is the victim of abusive treatment, mainly in the last two years by various colleagues. Some train drivers have a superior attitude towards guards and this was reflected in their abusive manner and Mr Khader said he refused to let himself be put down in that way. One of the drivers who abused him at North Sydney was also abusive towards other drivers. The report noted Mr Khader's complaints, and his workplace injury, and noted that he reported that he often has headaches in the morning associated with poor sleep.

"He describes flashback of incidents during which he has profuse sweating, hyperventilation and gets headaches which last for 5 - 10 minutes. There are no provocative factors and the attacks came on both at work and at home."....

As detailed above, from 29 January 2008 Mr Khader provided medical certificates that he was unfit for work from his general practitioner, Dr Kunchapudi.

A report by Dr Khoo, of Health for Industry dated17 June 2008, for an assessment date of 28 May 2008, notes the description of depressive and anxiety symptoms in the context of alleged workplace bullying and harassment. Dr Khoo notes that Mr Khader describes feeling stressed, anxious and depressed since July 2007 after a self-described two-year period of incidents. The assessment and report by Dr Khoo was made some six months after the events of November 2007. The complaints made by Mr Khader to Dr Khoo were described in the report and include a number of the allegations before the Tribunal. Dr Khoo states:

.

"Since July 2007, he describes feeling anxious and depressed. He is also bothered by repeated flashbacks recollecting the various incidents many times a day. These are associated with feeling sweaty, chest tightness, racing heartbeat, stomach pains, headaches and they may last for up to 15 minutes each time. He is having broken sleep of up to 3 hours at a time....... He has been assessed by several mental health professionals...... He gives the reason for changing psychiatrists a failure to engage and develop rapport with the individuals he has seen...... I am uncertain what he [Dr Napper] thoughts are although he has prescribed Mr Khader an antipsychotic medication which he has not yet started. From what I can gather, he has not had any consistent treatment except some sleeping tablets intermittently. His care is also being overseen by his...GP."

Dr Khoo noted Mr Khader described persecutory ideas about specific individuals at work, but noted it was difficult to ascertain if these are in fact delusional without a thorough investigation of the allegations. Mr Khader did not present with more generalised persecutory ideas or have any hallucinations. Some of his symptoms have features suggestive of post-traumatic stress which is consistent with the episodes of alleged bullying and harassment. In relation to fitness to work Dr Khoo noted he had been prescribed medication by his new psychiatrist, Dr Napper, but was yet to start taking it. Dr Khoo considered he was temporarily unfit for his role as a train guard pending appropriate treatment by his psychiatrist. He further noted the benefit of a thorough investigation of Mr Khader's complaint to ascertain if delusional or not.

A report by Dr Napper, Consultant Psychiatrist, dated 23 July 2008, addressed to the applicant's general practitioner, noted an assessment by a psychologist, Ms Emily Higgins, in September 2007 and her view that Mr Khader was suffering from an Adjustment Disorder with Depressed Mood as a consequence of the workplace injury on 15 July 2007. Dr Napper states:

"on the basis of Mr Khader's accurate reporting of past events, the most likely diagnosis appears to be an Adjustment Disorder with Anxiety. His condition has not improved. One of the reasons that this is that he has not had a trial of psychotropic medication."

Dr Napper noted his advice that the applicant commence a trial of medications. As noted above Dr Napper clearly stated in his report that the diagnosis was based on an accurate reporting by Mr Khader of past events.

A report for an examination of 27 January 2010 by Dr Lovric, Consultant Psychiatrist, written by an Occupational Physician, Dr Wijetunga, dated 16 March 2010, noted that the applicant had been previously reviewed by Dr Lovric in October 2009. It was noted that Dr Lovric had spoken with Dr Napper and they are in agreement that Mr Khader had not suffered from a psychotic illness such as schizophrenia, and it was agreed that Mr Khader was likely harassed, or interpreted the behaviour of his colleagues as harassment, and in that context he had developed symptoms of an Adjustment Disorder with Depressed Mood which was resolving. At the time of the current assessment Dr Lovic did not make any psychiatric diagnosis. Mr Khader, in his written submissions and correspondence to the tribunal, objects to this report written by the Occupational Physician as inaccurate.

The tribunal also has access to the report written by Dr Lovric, dated 27 January 2010. In that report Dr Lovric notes that she commented previously that it was very difficult to make a retrospective diagnosis as to Mr Khader's mental state in 2005, but noted that she previously opined that the incidences that he had described did not seen to be outside the realm of possibility or normal human experience, and that she could not confirm Dr Samuell's diagnosis of psychosis, and noted that Dr Napper, Mr Khader's treating psychiatrist, did not believe that he had ever suffered from a psychotic illness. She noted that since she last saw Mr Khader he had returned to work on light duties, and although he complained of again experiencing harassment and bullying, he was keen to return to his previous work position. She states that "currently Mr Khader describes feeling worried, somewhat agitated but not depressed and ruminates about his perceived poor treatment and alleged harassment. He has no major psychiatric or psychological symptoms currently, although I note over a sustained period of time has ceased many of his previously pleasurable pursuits and he continues to see a psychiatrist intermittently and continues on the antidepressant medication". She finds that he is fit for his usual duties as a train guard (as at the time of her assessment in 2010), although she thinks some of his symptoms will be exacerbated if he experiences harassment when he returns there. She notes Mr Khader's complaints pertain to workplace issues and she believes they should be investigated through the appropriate channels. "I make no current psychiatric diagnosis."

The report of Ms Emily Higgins,Forensic Psychologist, was a report which was quite proximate to Mr Khader's complaint - it was a report dated 14 September 2007 - "psychological pre-liability assessment". Her report is detailed, and makes clear that she interviewed a number of persons in the workplace, as well as the applicant, and her report provides considerable detail about a number of complaints by Mr Khader about specific incidences including the incident of 15 July 2007. She concluded that the applicant was suffering from an Adjustment Disorder with Depressed Mood with an increase in symptoms of psychological distress in the days following the workplace incident of 15 July 2007. The report notes that his allegations are being investigated by the Workplace Conduct Unit - or were at the time of Ms Higgins' report.

A report by Dr Napper, addressed to the applicant's general practitioner, of 31 January 2011 notes that he initially diagnosed the applicant as suffering from an adjustment disorder with depression. He continued to treat Mr Khader in his rooms on a regular basis. His working diagnosis in 2009 was a Major Depressive Disorder. Mr Khader's psychiatric condition had been untreated prior to seeing Dr Napper. He noted Mr Khader had previously described episodes of having "mental images" of past events associated with somatic symptoms including sweating, headache and feelings of exhaustion. In Dr Napper's view on detailed examination it was clear that these "mental images" were ruminations and reflections, not actual physical images:

Mr Khader had said he was unable to correctly describe what he was experiencing....... There was no evidence that Mr Khader suffered from any kind of psychotic symptoms including delusions, hallucinations or thought disorder....Mr Khader reported that his managers at work trivialised his complaints and dismissed them as delusional thinking but the managers chose to believe the reports of his co-workers. His co-workers repeatedly denied that certain events had occurred."

Dr Napper reported (in a report of 31 January 2011) that Mr Khader had stated that Dr Samuell reported he was malodorous, yet Mr Khader had seen his GP on the same day, only one hour after seeing Dr Samuell, and she had reported him as being of good appearance and hygiene. He also saw another psychologist, a day prior to seeing Dr Samuell, and there was no reported issue about his hygiene. All other reports from RailCorp stated he was well presented. Dr Napper noted he saw Mr Khader regularly, he always presents as well dressed, of good appearance and he is not malodorous. Dr Napper noted that Zyprexa is also prescribed for conditions other than a psychotic condition, and in Mr Khader's case it was prescribed to make the anti-depressant work faster. Mr Khader experienced side effects and ceased the medication shortly after trying it. He was then prescribed an antidepressant and continued to stay on medication until the depression was treated. In his oral evidence to the Tribunal Dr Napper gave evidence consistent with his written reports. He did not agree that his reports should be given less weight because he first saw the applicant some time after July 2007, and noted that his reports and opinion should be given weight given the number of times that he had seen Mr Khader. Dr Napper impressed the tribunal as a witness who had sought to treat his patient and support his recovery. The tribunal places some weight on Dr Napper's opinion given the number of times he has seen the applicant and his involvement in the applicant's treatment/recovery. Dr Napper did not see the applicant proximately to July or November 2007, but the tribunal still considers his opinion should be given some weight for the reasons stated. It is clear that Dr Napper was strongly of the view that Mr Khader did not suffer from psychosis, and that the "mental imageries" were not psychotic visual hallucinations.

A report by Mr Khader's general practitioner, Dr Kunchapudi, was also available to the tribunal. In particular, Dr Kunchapudi referred to the medical history, her awareness of the various psychiatric and psychological opinions, and to her view that Mr Khader always presents as neat and tidy and very presentable. Dr Kunchapudi stated that on 27 November 2007 she became Mr Khader's treating Doctor. She states:" he presented as well dressed and was not malodorous and had insight into his problem and had no complaints of hallucinations. He was depressed and feeling low due to workplace harassments." In her report, Dr Kunchapudi summarises the findings in some of the other reports and expresses opinions. She also states:

"I have been Mr Khader's treating doctor since 27 November 2007 and have seen Mr Khader about several times. Mr Khader was well presented, neatly dressed and certainly not malodorous. Mr Khader did not have any signs of delusional thoughts, schizophrenia, hallucinations or any psychotic disorder. Mr Khader ruminated about past incidents, he said he did not know the word 'rumination' and initially he described the rumination as mental images. This was a reflection of what had occurred not actual visible or hallucinations. He stated his employer attempting to unfairly misunderstand his words. Dr Howard Napper also examined Mr Khader several times since 16/5/08. Dr Napper stated that Mr Khader did not suffer any psychotic illness. Considering the number of times myself and Dr Napper examined Mr Khader over three years, it can be certain that Mr Khader did not have any psychotic illness."

Dr Kunchapudi also gave oral evidence to the tribunal and was cross- examined by the representative for the respondent. She agreed that she was not qualified as a psychiatrist and could not offer a psychiatric opinion, however she indicated her support for the views of Dr Napper, treating psychiatrist.

The relevance of the medical evidence was questioned by the tribunal during the hearing. The respondent maintained that the medical evidence was relevant to understanding the applicant's evidence and the weight which could be given to the applicant's evidence in terms of the tribunal being satisfied of the reliability of the applicant's account. The applicant also relied on the medical evidence, the reason for such reliance being unclear to the tribunal. It appeared to the tribunal that the applicant's reliance on the medical evidence was to show that Dr Samuell's opinion was wrong, or unfair. The applicant also appeared to rely on the medical evidence as support for his claim of victimisation - he placed considerable weight on the fact that he was initially assessed as fit for work, but later assessed as unfit for work by HealthQuest after Dr Samuell's report was referred to HealthQuest. The applicant seeks, in the tribunal's view, to rely on medical evidence to indicate that Dr Samuell's report was without foundation and that he was therefore victimised.

Findings - medical evidence

The tribunal finds that the medical evidence indicates the following. Mr O'Neill made a diagnosis of delusional disorder, persecutory type. A diagnosis of adjustment disorder with depressed mood was made by Ms Higgins, and initially by Dr Napper, and was also made by Dr Lovric. Dr Napper concluded that his diagnosis was a major depressive disorder. Dr Khoo found were were symptoms consistent with a post traumatic stress disorder. Dr So (to whom Mr Khader was referred by his GP) found a depressive episode of moderate severity, likely untreated for years, in the context of obsessional personality traits, and that differential diagnosis included a delusional disorder and there was a need to consider depression with psychotic features. Dr Samuell found that the applicant suffers a psychotic illness and experienced hallucinations and delusions. In relation to the presence of hallucinations, Dr So found them to be pseudo-hallucinations which were mood dependent and congruent. Dr Napper referred to "mental images" and ruminations. Other reports referred to above in these reasons for decision, including from HealthQuest and Dr Khoo, described mental images with somatic symptoms such as sweating. Copies of clinical notes, obtained under summons and submitted into evidence in the proceedings, referred to mental images experienced by the applicant.

The tribunal finds that the medical evidence post dates the period of time of the majority of the applicant's complaints. None of the medical opinions in the various reports are based on an assessments of the applicant's state of mind conducted during the two year period prior to 15 July 2007 when he says he suffered work place harassment. All of the medical evidence is for assessments conducted after 15 July 2007. Some of the assessments were however conducted before, and proximately to, the workplace incident of 5 November 2007.

The Tribunal emphasises that the accounts provided in the various medical reports are not evidence of what actually occurred in the workplace. A number of reports, including the reports of Dr Napper and Dr Kunchapudi, rely on information given to them by the applicant. Statements in these reports cannot be relied upon to establish that the applicant was harassed or that he was discriminated against on the basis of his race. The medical reports certainly evidence that Mr Khader believed that he was so harassed in the work place, but they cannot be read as establishing that such harassment or discrimination occurred.

It was also considered in some of the medical reports that it would be difficult to diagnose delusional disorder without a thorough investigation of the allegations made by Mr Khader. Mr Khader believes the allegations were not adequately investigated. However it appears that the workplace conduct unit did make some investigation. Further there was a prompt local area investigation of the complaint of 5 November 2007 and an attempt by the Human Resourses management to follow up by meeting with Mr Khader. Some of the professionals who assessed Mr Khader and wrote reports (Mr O'Neill and Ms Higgins) did attempt to seek some collateral information from other sources (such as managers or employees in the workplace) to assist in their assessments. It is not the tribunal's function to decide whether there were inadequacies in the investigation of Mr Khader's complaint, it is the tribunal's function to decide whether he suffered racial discrimination and victimisation

The Tribunal accepts that the medical evidence indicates that the applicant has been suffering from a mental health condition from at least July 2007 and during the period of the complaint .He self described some symptoms during the interview with the WorkPlace Conduct Unit in August 2007 when he stated "as a result I've suffered emotional meltdown, headaches and sleeplessness. I lose concentration as a result of the images and thoughts of these two years of bullying and abuse. My health and well-being is affected and use medication." Whilst this statement is made after July 2007 it is made well before 5 November 2007, and also refers to suffering symptoms due to two years of abuse. It may be that he is describing symptoms which he experienced during those two years, or it may be that he is stating only current symptoms as at August 2007.

This mental health condition, which on the medical evidence the tribunal accepts was suffered by the applicant from at least July 2007, and during the period of the complaint, has been given various labels/diagnoses by various health professionals ranging from major depression, depression with obsessional traits, anxiety and depression, depression with psychotic features, delusional disorder with persecutory themes. The balance of medical evidence is against the view of Dr Samuell that Mr Khader was psychotic. Dr Samuel saw Mr Khader on only one occasion. Dr Napper and his general practitioner saw him on several occasions. Ms Higgins, forensic psychologist, who saw Mr Khader proximately to the incident of 15 July 2007, diagnosed adjustment disorder with depression. Dr Lovric did not accept Dr Samuell's view that Mr Khader was psychotic but agreed with the then held view of Dr Napper that he suffered adjustment disorder with depression. As detailed above the tribunal found the view of Mr O'Neill should be given some weight. The tribunal found the report of Dr So, the applicant's own treating psychiatrist on referral from his GP, to be to be largely consistent with the views of Mr O'Neill.

The tribunal does not accept Dr Samuell's view that Mr Khader was malodorous as this was not consistent with all the other evidence before the tribunal as to Mr Khader's general presentation. The tribunal was not persuaded, considering the evidence overall, that Dr Samuell's opinion should be accepted by the tribunal. The tribunal considers that Dr Samuell's opinion was not consistent with the other medical evidence before the tribunal, he saw the applicant on one occasion in the context of preparation of an opinion for workers compensation. Dr So, who saw the applicant around the same time, was consulted on referral by the applicant's GP and saw him in this clinical context. Dr So's psychiatric opinion as at November 2007 was more consistent with other evidence before the tribunal, including the report of Mr O'Neill, and the tribunal prefers Dr So's psychiatric opinion to that of Dr Samuell. (Both opinions were for assessments proximate in time to the incident of 5 November 2007). The tribunal also gives some weight to the opinion of Dr Napper as discussed above.

However, the tribunal accepts that Dr Samuell's opinion was a professional medical opinion before HealthQuest, which the Healthquest was obliged to consider in assessing the applicant's fitness. The tribunal finds that when the reports of Dr Samuell and Dr So were referred to HealthQuest, it was proper for HealthQuest to have regard to those medical opinions, and the medical assessment of HealthQuest that Mr Khader was not fit for work in January/February 2008 was based on medical evidence.That medical evidence included the medical opinions of Dr Samuell (obtained in the context of workers compensation) and Dr So (obtained on referral by the applicant's GP). The medical evidence on which the HealthQuest assessment and opinion was based therefore was not limited to an opinion obtained by the employers workers compensation insurer, but included the opinion of the applicant's then psychiatrist, Dr So (on referral from the applicant's GP).

The respondent seeks to rely on the medical evidence as indicative of the reliability of the applicant's account of events, this will be discussed further below.The medical evidence indicates that the applicantexperienced physical symptoms in response to mental images. The tribunal accepts the balance of medical evidence indicates that the mental images were not visual hallucinations of a psychotic nature. Dr So's opinion that these were mood congruent pseudo-hallucinations seems plausible on the evidence overall - it is clear that the applicant reported experiencing mental images during many medical assessments to different doctors, and the tribunal is not convinced that this description was a mere rumination, given the frequency of the report that he saw the images. However, the tribunal is also not satisfied that they were psychotic visual hallucinations on the evidence overall in this matter. It appears that the balance of the medical evidence indicates that the images were linked to depression. In any event, the issue of whether the applicant experienced mental images or ruminations has not had any impact on the tribunal's findings in this matter.

The consideration of the reports of Dr So and Dr Samuell by HealthQuest and the subsequent assessment that Mr Khader was unfit for work, had consequences with which the applicant strongly disagreed: he ceased to be paid workers compensation by the respondent, and was required to submit medical certificates to be eligible for sick pay. This part of the case presented Mr Khader with some difficulties on the evidence before the tribunal. He seemed to wish to suggest to the tribunal, in his evidence, that he was fit for work and Dr Samuell was incorrect; however, at the same time he was faced with medical certificates given to his employer by his general practitioner certifying that he was not fit for work. When questioned about these medical certificates Mr Khader seem to be indicating that he had obtained the medical certificates because he had to, to receive pay, because of what had occurred after Dr Samuell's opinion was received. When it was put to him by the respondent that a doctor would not write a medical certificate unless the doctor truly believed that Mr Khader was unfit for work he conceded that this was so. However, at the same time he clearly seemed to be indicating to the tribunal that he believed he had no choice but to obtain and present medical certificates stating that he was unfit.

The tribunal finds that the respondent was entitled to rely on the medical certificates from the treating general practitioner that the applicant was unfit for work in the relevant period.

Other evidentiary issues - CCTV footage and availability of Ms Ryan

The issue of the availability of the CCTV footage was dealt with by the applicant in his evidence to the tribunal and also by the respondent in the affidavit of James Morton, solicitor with RailCorp. Attached to the affidavit of Mr Morton were a number of documents relating to this issue. In particular the initial complaint recorded by Mr Ho, hotline operator, records the applicant making a complaint on 20 July 2007 that he has been constantly abused by co-workers, that he "doesn't belong here" as he is originally from the Middle East. "In this incident, a co-worker of his threw paper onto him and made some verbal harassment to him". Notation is:

"worker advised that we can obtain surveillance tapes of the station at the time specified to investigate".

The applicant also provided records relating to the complaint recorded by Mr Ho and Ms Cookson in the material he submitted.

Attached to Mr Morton's affidavit is a copy of a letter sent by the applicant on 10 August 2007 requesting access to the CCTV footage of platform one and two at Blacktown station on 15 July 2007 at 9:23 am to be kept for the investigation. A further letter of 6 January 2008 by the applicant to the investigator of the Workplace Conduct Unit requests the result of the investigation and further requests that the applicant would like to be informed if the CTTV footage, of Blacktown platforms one and two of 15 July 2007, was kept for future enquiries "as requested in my letter of 10 August 2007". Mr Robert Graham, investigator, responded by letter dated 7 January 2008 to the letter of 6 January 2008. The letter enclosed a letter dated 30 October 2007 advising of the outcome of the investigation. The letter further states that he is unaware if any CCTV footage was kept. Also attached to the affidavit of Mr Morton is the CCTV protocols document for RailCorp. Mr Morton's affidavit also provides detail of how the supply, installation and maintenance a CCTV system for RailCorp is delivered under a service agreement with Tyco Propriety Limited (Tyco). Pursuant to the terms of the service agreement, Tyco is required to supply CCTV infrastructure that stores all recorded data for no less than 14 days. After a period of approximately 14 days, recorded CCTV data is recorded over, due to the limits of storage capacity in the CCTV system provided by Tyco. RailCorp has developed CCTV protocols governing the use of the RailCorp surveillance system. As at 10 August 2007 the protocols provided that all CCTV footage is automatically saved for 14 days, and all requests for the CCTV footage must be made within 14 days of an incident. Mr Morton testified to his enquiries into this issue and to his belief that RailCorp had retained no CCTV footage from platforms one and two at Blacktown station from 15 July 2007.

It was submitted by the respondent on the basis of this evidence that Mr Khader first made his request by letter dated 10 August 2007 and as this was over 14 days after the incident the CCTV footage would not have been in existence at that time. The tribunal has looked at the record of the telephone complaint made by Mr Khader and the advice of Mr Ho that footage could be retained. The tribunal finds, considering the record on its face, that the record reads as advice by Mr Ho during the complaint call that the footage could be obtained, and does not read as a specific request made by the applicant to retain the footage. Whilst it may been a good practice forthe employees of the respondent to organise to retain the footage if such availability is discussed with an employee during a complaint call, the tribunal finds no deliberate malicious intent, or intent to avoid making the footage available, in the footage having not been maintained, on the evidence in this matter. On the evidence presented the tribunal considers that when the request came on 10 August 2007 it was probable that the footage was not in existence at that time, given that it was over 14 days since the footage had been recorded. The tribunal is satisfied on the evidence that the CCTV footage could not be produced by the respondent because it was not available. The tribunal has drawn no adverse conclusions against the respondent in this matter due to the unavailability of the CCTV footage, having regard to the findings which the tribunal makes about the fact the footage is unavailable, as set out above.

The applicant was clearly dissatisfied that Ms Ryan was unavailable for questioning and the tribunal notes that the applicant had been given leave of the tribunal prior to the hearing to issue a summons for her attendance (he also summonsed Mr O'Neill and Ms Harpur). The tribunal was told by Mr Morton, solicitor for RailCorp, that Ms Ryan had extended sick leave throughout 2010. Various attempts were made by the respondent's representatives to meet with her, they tried by phone on a number of occasions. An appointment was made with Ms Ryan on 4 March 2010 for the purpose of making a statement for these proceedings. The respondent's solicitors from Henry Davis York were going to accompany Mr Morton, in-house solicitor for RailCorp, on that day to take that statement. All other attempts before that day, and after that day, were unsuccessful. She did not keep the appointment of 4 March 2010. Mr Morton's understanding is that Ms Ryan is suffering from a psychological condition and so RailCorp decided to obtain statements from Ms Stuardo. The employment relationship between RailCorp and Ms Ryan had broken down. He further noted that in 2009 there was a restructure of the Human Resources of RailCorp, Ms Ryan applied for a higher position was unsuccessful and was so advised late in December 2009 and Mr Morton believes this was the beginning of the end of the relationship between RailCorp and Ms Ryan. There was subsequently continuous leave for a psychological condition. In November 2010 she refused to attend disciplinary proceedings and she ultimately made a legal complaint. That legal complaint, against the respondent, was conciliated in 2011 and in May 2011 Ms Ryan resigned. Mr Morton also referred to searches undertaken to locate employees which were unsuccessful,including a search for Mr Prince, one of the respondent's managers, who resigned in early June 2009. The tribunal is satisfied that if the respondent could produce Ms Ryan as a witness it would have done so,however due to lack of co-operation and her unavailability to RailCorp, they wereunable to produce her as a witness. The tribunal draws no adverse inference about the respondent's evidence, from the absence of Ms Ryan.

Racial discrimination - Legal Considerations

Racial discrimination is defined in s7 of the Anti-Discrimination Act 1977:

. 7 What constitutes discrimination on the ground of race

(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:

(a) 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 of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(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.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

Racial discrimination in employment is unlawful pursuant to s 8 of the Anti-Discrimination Act1977:

8 Discrimination against applicants and employees

(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, or

(c) in the terms on which the employer offers employment.

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

(a) in the terms or conditions of employment which the employer affords the employee,

(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, or

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

(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household

The Tribunal has considered guidance provided by other decisions of the Tribunal and the Courts in application of the legal provisions to the facts of the particular case. The Appeal Panel of the Tribunal in the case of Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 stated:

Definition of direct race discrimination

38 Section 8 of the Act is the substantive provision in relation to race discrimination in employment. That section makes it "unlawful for an employer to discriminate against a person on the ground of race" in the circumstances described in sub-sections (1) and (2). Section 7 defines the words "discriminates . . . on the ground of race". It states: ...........

..........

41 The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts. While there has been some confusion and inconsistency there is clear authority to guide us. In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105):

The inquiry for which the section calls is a factual one involving essentially, two separate questions. The first, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)?

42 In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Dawson and Toohey JJ stated (at p 392):

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).

43 In the leading House of Lords decision, James v Eastleigh Borough Council [1990] UKHL 6; [1990] 2 AC 751, Lord Goff stated:

The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman?

44 In our opinion these statements clearly express the relevant law and should have led the Tribunal to pose for itself the following question. Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different?

45 It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.

The test of causation in discrimination (and victimisation) cases was further considered by the Appeal Panel of the Tribunal in the case of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nicholls case) . After reviewing the authorities the Appeal Panel stated:

36 The test set out by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 and applied by the Tribunal in Shaikh is essentially the same test that the High Court enunciated more recently in Purvis. That fact supports our view that s 4A is an explanatory provision which does not give the words 'on the ground of' an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.

37 Conclusion. Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.

In the case of Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP the Appeal Panel of the Tribunal stated:

Elements of direct race discrimination

37 Introduction. As we noted in our first decision, at [71] there are several cases in which racially based abuse has been held to constitute unlawful discrimination. (See, for example Ardeshirian v Robe River Iron Associates (1990) EOC 92-299; Metwally v University of Wollongong (1984) EOC 92-030; Rugema v Gadsten Pty Ltd t/a Southcorp Packaging (1997) EOC 92-887.) There is no suggestion in this case that Mr Aldridge was the victim of racially based abuse; what is suggested, however is that Mr Aldridge was abused because of his race. Abuse of an employee by an employer, even if it has no racial content, can constitute a "detriment" within the meaning of s 8(2)(c) and it can amount to unlawful discrimination on the ground of race if the employee is treated less favourably than other employees in the same or similar circumstances and a reason or ground for that treatment is the employee's race. As we have already indicated, the evidence leads to the inescapable conclusion that Mr Aldridge was abused and bullied by Mr Woodham at the August meeting. This abuse and bullying constituted a detriment within the meaning of s 8(2)(c) of the AD Act. Mr Aldridge was entitled to carry out his work for the Commissioner free from abuse and bullying from his superiors, such as the Assistant Commissioner. It is necessary to determine, however, whether this abuse and bullying amounted to discrimination on the ground of race.

38 In our decision of 18 April 2000 we stated that, in relation to the complaint of discrimination on the ground of race, two issues needed to be addressed. Those issues are:

Whether the Complainant was treated less favourably than a non-Aboriginal person would have been treated in circumstances that are the same or not materially different (the comparison issue);

If so, whether that less favourable treatment was on ground of the race of the Complainant (the causation issue).

39 Differential treatment. As we also said in that earlier decision, differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. For differential treatment to have occurred in this case, the treatment of Mr Aldridge must have been objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same or similar circumstances.

Racial discrimination - discussion of law, evidence and findings

The authorities cited above clearly indicate that the applicant must establish, to support his claim of racial discrimination, that he has been subject of differential treatment by the respondent on the ground of his race. He must firstly establish differential treatment and then establish causation. The authorities reviewed above indicate that being subjected to racial abuse may constitute racial discrimination. The applicant's case is that on 15 July 2007 he suffered a detriment when he was subjected to racial abuse in the workplace by his work collegue, Mr Aitchison. For the purpose of determining the application the tribunal will accept that saying the words "burn the flag" to someone of the applicant's national origin (Middle Eastern origin) can constitute abuse/discrimination on the grounds of the applicant's race.

In relation to the incident of 15 July 2007 the tribunal finds as follows. Mr Khader has given one account of what occurred. Mr Aitchison has given a different account. As discussed above, the tribunal draws no adverse inference from the unavailability of the CCTV footage. In an application in the Equal Opportunity Division, under the Anti-Discrimination Act 1977, the applicant bears the onus of proof, on the balance of probabilities. The applicant is required to establish on the evidence to the required standard of proof that, in this case, the racial abuse which he says occurred on 15 July 2007 did occur. In support of an acceptance of the applicant's version is the consistency of his version: from soon after the alleged incident on 15 July 2007 the applicant has complained in the same terms - in an initial complaint on 20 July 2007, and subsequent complaints to the Work Place Conduct Unit and the Board. The applicant has no other evidence to support his version of events - there were no witnesses to the incident of 15 July 2007 other than Mr Aitchison, whom the applicant states made the racial abuse.

When the tribunal considers the evidence of Mr Aitchison the tribunal had no basis for not accepting his evidence - his oral evidence to the tribunal was consistent with his written affidavit, which was consistent with earlier accounts provided by him to his workplace manager (a written statement which he provided to Mr Prince). The tribunal found nothing in Mr Aitchison's presentation as a witness on which the tribunal could base a finding that his evidence was unreliable or should the given less weight. None of the evidence about the "background events" implicated Mr Aitchison in a culture of abuse in the workplace as there is no reference to Mr Aitchison being involved in any other incidents with the other employees complained about. Accordingly there is no evidence indicating that Mr Aitchison has a motive to give false testimony, such as to cover up for other employees. Clearly he might have a motive to avoid accountability for the abusive behaviour alleged by the applicant. However, Mr Aitchison in his evidence to the tribunal did not appear evasive or untruthful. The Tribunal found Mr Aitchison to be a straightforward witness, his testimony was not impugned in cross examination, and the tribunal had no basis on the evidence on which to reject his evidence as unreliable or lacking in credibility. As the tribunal had no basis to reject his evidence then the tribunal accepts that Mr Aitchison's sworn evidence is that what is alleged by the applicant to have occurred on 15 July 2007 (and the use of the words on four previous occasions) did not occur.

The applicant has the onus of proof, and where there is a witness (in this case Mr Aitchison) disputing the applicant's account, the tribunal must have some basis for preferring the applicant's account over Mr Aitchison's account, for the applicant to establish his case on the balance of probabilities.

The tribunal has no basis for preferring the version of the applicant over the version of Mr Aitchison and accordingly, given that the applicant has the onus of proof, the tribunal finds that the applicant has not been able to satisfy the tribunal that the incident which he says occurred on 15 July 2007, occurred. Mr Aitchison says it did not occur in the manner described. Mr Aitchison denies behaving in that way towards the applicant. Given the different versions by the applicant and Mr Aitchison, and given that the tribunal has no basis to prefer the applicant's evidence over the evidence of Mr Aitchison, then the tribunal finds that the applicant has not proved, on the balance of probabilities, that the incident occurred on 15 July 2007 in the manner described by the applicant. That being so the tribunal finds that there was no racial discrimination towards the applicant on 15 July 2007.

The tribunal, in making the finding above, has considered that the applicant has, from 20 July 2007onward, maintained that the incident of 15 July 2007 occurred, and given largely consistent accounts. However, despite this consistency the tribunal has some concerns as to the reliability of the applicant's evidence. Given these concerns the tribunal could not make findings preferring the applicant's evidence on the basis of its consistency. In this context it is worth noting that the evidence of Mr Aitchison was also consistent. The tribunal has no basis for finding that the applicant is untruthful. The tribunal's concerns as to the reliability of the applicant's evidence are based the evidence overall as set out in these Reasons for Decision, including the tribunal's observations at paragraphs 24 - 38. The tribunal has also considered the medical evidence in this case.

The tribunal did not find the applicant to be a dishonest witness. In making findings in relation to the applicant's evidence the tribunal considers that he honestly believed that what he told the tribunal was a true account. The observations of the tribunal detailed at paragraphs 24 to 38 above do suggest that the applicant is quick to perceive that behaviour is targeted at him, sometimes without any context or objective indicators to suggest that he is the target. The evidence in this matter indicates occasions where the applicant is quick to perceive injury and/or insults, where such may or may not lie. Such sensitivity may be explained by the applicant's mental state in the relevant period, it is clear he was suffering from anxiety and depression from 2007 on, and at least one of the medical reports indicates that this condition was likely untreated for some years. The medical opinions (detailed above in these reasons for decision) that he had, alternatively, persecutory beliefs (Mr O'Neill, refer paragraphs 41 - 45 above) or interpersonal sensitivity (Dr So) (such sensitivity in the context of a major depression or other mental health condition such as delusion disorder), are consistent with the tribunal's observations of the applicant's evidence, which appears to the tribunal to indicate that the applicant is quick to perceive - on the basis sometimes of nonverbal cues and very little supporting objective evidence - that he is the target of comments/behaviours by co-workers, and once this is perceived he is certain that this is what has occurred, even in the face of denials. This was also seen on his return to work on 5 November 2007 - very soon after arrival at work he perceived that colleagues were pointing at him and laughing at him. An investigation of this incident on the day did not support the applicant's account. For the reasons discussed above, on the basis of the evidence, the tribunal finds the applicant's evidence about what occurred to be unreliable.

The tribunal observes that even if the tribunal is wrong in its finding about the reliability of the applicant's evidence, the tribunal had no basis for preferring the applicant's account over the account of Mr Aitchison, as Mr Aitchison's account was also consistent with prior statements, and his evidence as detailed above was found by the tribunal to be credible and the tribunal had no basis for rejecting his evidence. Accordingly as the evidence of Mr Aitchison was accepted by the tribunal, and contradicted the applicant's account, the tribunal found that the applicant had not proved his case on the balance of probabilities (as detailed above).

The basis of the tribunal's finding that the applicant has not established his case of discrimination, is that the tribunal finds that the applicant has not proved that he was racially abused on 15 July 2007 and this is the incident relied upon by Mr Khader to establish his case. This is the complaint before the tribunal, referred by the Anti-Discrimination Board. The tribunal is not satisfied that Mr Aitchison behaved in the way described by the applicant and therefore the applicant has failed to establish that he suffered abuse, for reason of his race, on 15 July 2007. That being so, the tribunal does not need to go on to consider in detail the issues of differential treatment and causation.

Victimisation

The applicant bears the onus of proof in establishing the claim of victimisation. The basis of this claim is that the applicant was referred for a health assessment, by the respondent, because he had complained of racial discrimination. The applicant's case, in summary, is that he made a complaint about abuse/harassment/bullying/intimidation in the workplace and the respondent's Workplace Investigation Unit interviewed him in relation to his complaint. As part of the applicant's complaint to the Respondent he did make a complaint that the reason that he was so mistreated was because of his race, or his Middle Eastern origin.

The applicant's case is that as a consequence of making this complaint that the respondent had breached the Act by acting in a racially discriminating way towards him, he was then the subject to victimisation by being referred for a health assessment. The applicant further submits that the intention of Ms Ryan was to cause the applicant detriment, to decline his workers compensation claim, to declare him unfit for work. The applicant also appeared to be suggesting that the way the medical evidence was presented and conclusions drawn about his fitness to work was part of the victimisation. He stated that when Ms Ryan referred Dr Samuell's report to HealthQuest he was then assessed as unfit. He said everything was the same except for Dr Samuell's report between the assessment of 3 January 2008 and the assessment of 14 February 2008.

The evidence relating to this issue is set out above in these reasons the decision. It is clear that Ms Ryan, Human Resources Manager, did make a referral to HealthQuest in terms of the letter of 7 November 2007. It is also clear on the evidence that Ms Ryan did make reference to Mr Khader's account provided during the interview with the Workplace Investigation Unit, and referred to this interview as one of the matters causing her to have some concerns for the applicant's psychological health. The tribunal will consider the evidence, further discussed below, in the context of applicable law.

Victimisation - legal considerations

Section 50 of the Act provides:

(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,

(b) given evidence or information in connection with proceedings brought by any person 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.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

In interpreting the requirements of s50 of the Act, the Tribunal agrees with the statement of the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 235 -

The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1)?

In the case of Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 the Tribunal stated:

The elements of victimisation can be described as a four-fold requirement. Firstly, the Respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the Respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith. That defence is not relied on in this case. It has been suggested that there is an additional requirement of intention implicit in the word "subject" (see Bhattacharya v Department of Public Works (1984) EOC 92-117; Bogie v The University of Western Sydney (1990) EOC 92-313). However, in the light of later decisions (particularly Australian Iron Steel Pty Ltd v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 176 and Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349, at EOC pp 78,674 and 78,687; CLR pp 359 and 382) in our view this requirement means no more than that the conduct of the Respondent was done on one of the grounds referred to and adds nothing of substance to the other stated requirements. The phrase "in any circumstances" which does not appear in Federal legislation in our view emphasises that the word "detriment" is to be given a broad interpretation. As to the meaning of the word "detriment" we do not consider it helpful to refer to the relative concept more applicable to discrimination provisions namely "to suffer a material difference in treatment" but prefer the Macquarie Dictionary meaning of "loss damage or injury" (cf Bodart-Bailey v Australian National University, (1995) EOC 92-744 at p 78,553.

The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the Respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.

The difficulties for an applicant in establishing evidence in discrimination cases was referred to by the tribunal in the case of Dutt v Central Coast Area Health Service [2002] NSWADT 133:

74 This difficulty for an Applicant [in providing direct evidence of racial discrimination/relying on circumstantial evidence] has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11

. . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the Respondents, and be difficult for complainants to elicit in any credible form.

Absence of evidence

82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination....

.....Evidence supporting an inference of other grounds

87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt's race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt's race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct.

In the decision of the Tribunal in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 the following was noted in relation to the drawing of inferences:

85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination:

(a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(d) 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";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.

Victimisation - discussion of law, evidence and findings

For the purpose of determining the applicant's victimisation application, the tribunal will accept that a referral for a health assessment, which can put a person's employment under review, may be a detriment. The tribunal is satisfied that the applicant, prior to the referral to HealthQuest, had made a complaint that the respondent had breached the provisions of the Act through racial abuse/discrimination. The question for the tribunal, accepting for the purposes of considering this issue that the applicant has established a detriment, is whether the applicant has established causation. As noted above, the Appeal Panel in Nicholls case has found that an applicant, in proving causation in a victimisation case, must establish, on the balance of probabilities, that the making of the complaint of racial discrimination (the complaint that the respondent has contravened the Act) is one of the real, genuine or true reasons, for the respondent subjecting the applicant to a detriment. The tribunal notes the applicant has no direct evidence that a true or genuine or real reason that the respondent referred him for a health assessment was his complaint of racial discrimination - the applicant seeks that the tribunal draw this inference from the evidence overall.

The evidence on which the applicant relies, for the drawing of the inference, is that on referring him to HealthQuest Ms Ryan did refer to the complaints which the applicant had made to the Workplace Investigation Unit and the record of interview which was conducted in relation to the complaint; and that the referral was made after his return to work and after he made a further complaint of 5 November 2007. As set out above in these Reasons the Decision the referral began with a letter of Ms Ryan to HealthQuest when she did refer to the applicant's complaints and to the record of interview with the applicant conducted by the Workplace Conduct Unit - there is therefore a connection on the facts.However, the tribunal finds that the inference to be drawn from a reading of the correspondence is that Ms Ryan formed a view that the applicant's health may be in issue. The correspondence of Ms Ryan indicates that this concern for the applicant's health was not just due to what he said in the Workplace Conduct Unit interview, there was also concern for his health based on his perception of harassment on 5 November 2007 on a return to work, such harassmentin Ms Ryan's view was not borne out by the respondent's investigation. Further there was concern expressed that after the incident on 5 November 2007 Mr Khader refused to meet with Ms Ryan or other management representatives to resolve the issue. Mr Khader did agree that meetings were attempted to be organised by the respondent, and that he would not attend these meetings.

The tribunal finds that the evidence supports an inference that Ms Ryan held concerns for Mr Khader's health, and this supports the inference that the reason for Ms Ryan referring Mr Khader for an assessment was due to her concern that there may be health issues involved for Mr Khader. The tribunal accepts that the respondent has responsibility for the health of employees who conduct rail safety work and that it is an ongoing obligation of the respondent to ensure that employees are fit for work. The evidence before the tribunal indicates that where there is a concern about the health of an employee a triggered health assessment can occur whereby an employee is referred for assessment specifically because there is a concern about their health. The tribunal is satisfied, on the evidence in this matter, that this is what occurred when Mr Khader was referred for an assessment. Further, the tribunal is satisfied that given the concern held by Ms Ryan as to the applicant's health, and given the respondent's ongoing responsibility for the health of rail safety workers, that when Ms Ryan referred the reports of Dr Samuell and Dr So for HealthQuest consideration,this was because of her concern that the applicant may be unwell. The Tribunal considers that the reports of Dr Samuell, and Dr So (the applicant's then treating psychiatrist) were relevant to an assessment of fitness to work.

For the applicant to establish victimisation, the applicant must establish causation, and in this case Mr Khader is required to establish that one of the true, genuine or real reasons for the referral to HealthQuest was his making of the complaint about his mistreatment, or racial discrimination, in the workplace. As noted above, in the absence of direct evidence the applicant relies on the tribunal drawing on inference from the evidence relating to the referral to HealthQuest. The tribunal may not draw the inference where there is a more probable and innocent explanation available on the evidence. The tribunal considers on the evidence that Ms Ryan did form a concern about Mr Khader's mental health. The tribunal considers that her correspondence with HealthQuest supports this finding. The tribunal considers that the evidence supports a conclusion that a real and genuine reason for the referral to HealthQuest was the concern of the respondent as to Mr Khader's psychological health. This is a plausible and innocent explanation clearly available to the tribunal on the evidence. Given that this plausible and innocent explanation is available on the evidence, then the tribunal could not draw the inference, that one of the true, genuine or real reasons for the referral to HealthQuest was that Mr Khader had made a complaint that the respondent had breached the Act by racial discrimination in the workplace. Accordingly, the tribunal finds that Mr Khader has not established causation in relation to his claim of victimisation, and accordingly the tribunal must dismiss the applicant's case.

Whilst HealthQuest's initial view was that Mr Khader was fit for work, when the opinions of Dr Samuell and Dr So were reviewed, HealthQuest then formed the view, after considering those reports, that Mr Khader was not fit for work. The tribunal considers that this finding by HealthQuest was made on the basis of the medical evidence before it, and was a finding open to it on the medical evidence. The finding of HealthQuest as to fitness to work was not, in the tribunal's view on the evidence in this matter, based on the fact that Mr Khader had made a complaint of racial discrimination to RailCorp. The tribunal finds that the finding of HealthQuest that Mr Khader was not fit for work was based on the medical evidence before it. As such, the tribunal is not satisfied that one of the real or genuine reasons for the finding of HealthQuest that he was unfit for work, was that he had made a complaint of racial discrimination against RailCorp.

For the reasons detailed above, the tribunal finds that the applicant has not established on the evidence in this matter, to the required onus of proof, being the balance of probabilities, according to applicable law, his case that he suffered discrimination and victimisation in the workplace. Accordingly the tribunal dismissed the application.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 02 March 2012

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