Khan v Macquarie University

[1999] NSWADT 100

CITATION:	Khan -v- Macquarie University and Webster [1999] NSWADT 100
DIVISION:	Equal Opportunity
APPLICANT:	Mohammed Shafiq Khan
RESPONDENT:	Macquarie University and Michael Webster
FILE NUMBER:	981026
HEARING DATES:	07/29/1999
SUBMISSIONS CLOSED:	07/29/1999
DATE OF DECISION:	25 October 1999
BEFORE:	N Hennessy - Deputy President K Edwards - Member M Luger - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Race Discrimination - Employment -
MATTER FOR DECISION:	Application to have complaint dismissed pursuant to section 111(1)
REPRESENTATION:	Applicant: In person Respondent: Ms Oakley of counsel instructed by Minter Ellison, solicitors
ORDERS:	Order made on 29 July 1999 1. The complaint is dismissed.

History of the complaint

1 This application began as a complaint by Mr Khan to the President of the Anti-Discrimination Board on 8 July 1998. His complaint alleged that he had been discriminated against during his employment because of his race (Indian). Mr Khan is employed by Macquarie University (the University) as Manager, Revenue Services in the Financial Services Department.

2 Mr Khan’s complaint fell into two parts. The first part relates to an incident in 1996 when he alleges that a fellow employee abused him when he opened another employee’s desk drawer to look for an envelope. He complained about the way his supervisor, Mr Webster, dealt with his complaint following this incident. (I will refer to this incident as the “drawer opening incident.”) The President did not accept this complaint as it was lodged outside the statutory time limit.

3 The second part of Mr Khan’s complaint relates to the mail opening policy implemented by the Financial Services Department in October 1997. Mr Khan alleged firstly that the policy itself discriminated against him on the ground of his race and secondly that the University discriminated against him on the ground of his race in failing to adequately address his concerns in relation to the policy.

4 The President declined the first part of Mr Khan’s complaint relating to the policy itself as not disclosing a contravention of the Act. The second part, in relation to the University’s response to his concerns about the policy, was declined as “lacking in substance” under s 90(1) of the Anti-Discrimination Act 1977 (the Act). Mr Khan requested that the second part of his complaint be referred to the Tribunal for a hearing.

5 Despite the fact that the allegations relating to the drawer opening incident were not accepted as a complaint by the President, Mr Khan sought to include evidence of this incident in the Tribunal hearing. He submitted that the response of his supervisor, Mr Webster, to the drawer opening incident demonstrated his bias against him and that this bias followed through to Mr Webster’s treatment of him in relation to the mail opening policy. The Tribunal allowed Mr Khan to submit evidence in relation to the drawer opening incident and to make submissions on how it was relevant to his substantive complaint.

6 At the conclusion of the evidence for the complainant, the respondent made an application under s 111(1) of the Act for the Tribunal to dismiss the complaint as both "misconceived" and "lacking in substance". It is that application that is the subject of this decision.

Evidence

7 We set out the evidence below indicating the Tribunal’s findings on questions of fact where there is a conflict.

8 Mr Khan is employed by the Office of Financial Services of Macquarie University as Manager, Revenue Services. That office currently employs 49 staff. His supervisor, Mr Webster is the Director of Financial Services and is responsible for those services across the entire University.

9 On 20 February 1996 Mr Khan gave evidence that Ms Wheeler, a fellow employee from another area, abused and humiliated him when he opened the desk drawer of one of his staff to look for an envelope. Mr Khan said in evidence before the Tribunal that Ms Wheeler had said “Do not open other people’s drawers. In our country this kind of thing doesn’t happen. Where do you come from?”

10 Although Mr Webster agreed that the incident occurred and that he investigated it, he denied ever having heard mention of the words Mr Khan said Ms Wheeler used. Mr Khan said he wrote the words down on the same day and mentioned them in his letter to the Anti-Discrimination Board. The same version of the conversation appears in a letter to the Board dated 10 August 1998 (Tab 4 of the President’s Report). Bearing in mind that for the purposes of a s 111 application the complainant’s evidence should be taken at its highest, the Tribunal finds, on the balance of probabilities, that Ms Wheeler did use these words.

11 On the same day as the drawer opening incident, Mr Khan wrote a memorandum to Mr Wheeler setting out his concerns about what had happened. A further memo was written by Mr Khan to Mr Webster on 21 February which stated, in part, that:

“I am deeply hurt and upset by Ms Wheeler’s unbearable and unacceptable conduct towards me yesterday when, in the presence of others, she ridiculed and degraded me, without knowing or finding out the reason for my opening Mrs Hopkin’s drawer. I demand an apology from Ms Wheeler. . . . I can’t see what Ms Wheeler’s problem was. Does she have a hatred for me?”

12 Another memo to Mr Webster dated 21 February stated that unless Ms Wheeler apologised by 23 February 1996 Mr Khan intended to refer the matter to the Equal Employment Opportunity (EEO) Office of the University.

13 Mr Khan agreed in cross examination that he had not mentioned anything about race discrimination or racial vilification in his correspondence with Mr Webster over the drawer opening incident. He said that this was because “At the time I wasn’t really thinking along those things. I was just thinking “abused” and “humiliated.” We find that given Mr Khan’s mention of the EEO Office in his memos, he did feel at the time that he had been discriminated against, or at least treated unfairly.

14 On 8 March 1996 Mr Webster issued a direction to staff which contained the following statement: “Do not access other staff members’ desk drawers or clothes cabinets without their prior approval. Staff have a right to keep confidential/personal items in desk drawers/clothes cabinets without fear of access by others.”

15 After investigating the drawer opening incident, Mr Webster responded to Mr Khan’s February memos on 19 March 1996. He acknowledged that while Mr Khan had been hurt and upset by Ms Wheeler’s comments he could find no “malice” in relation to her actions. Mr Webster said in evidence that despite the fact that Mr Khan had alleged that he sided with Ms Wheeler, he had acted fairly in trying to resolve the matter.

16 In the absence of any evidence from Ms Wheeler, it is difficult for us to make a finding about whether Mr Webster investigated and responded to Mr Khan’s complaint in a fair and unbiased manner. Even though we have found that Ms Wheeler did make remarks which denigrated Mr Khan’s country of origin, he did not tell Mr Webster exactly what she had said to him. Nevertheless, even if Mr Webster did not know about the references to Mr Khan’s country of origin, we would have thought that the appropriate course for Mr Webster to take would have been to counsel Ms Wheeler for abusing someone who was merely opening a drawer in an office to find an envelope.

17 The applicant did refer the matter to the EEO Office of the University. Ms Hamilton, a grievance officer, investigated the complaint. In evidence Mr Khan said that he participated in two interviews with Ms Hamilton and that while she was sympathetic to his case after the first interview, she appeared to have changed her mind during the second interview.

18 Ms Hamilton reported her findings in a memo to her supervisor, Ms Levin, on 18 March 1996. Basically the memo discloses that she was successful in convincing Mr Khan not to proceed with the complaint, but did invite him to come and talk to her again if he wished to do so. Again, it is difficult in the absence of oral evidence from Ms Hamilton to gauge whether or not this incident was adequately investigated and addressed. However, we repeat our earlier observation that Ms Wheeler’s reaction to Mr Khan seems to have been unnecessarily hostile.

19 The drawer opening incident was not a discrete complaint but was submitted as providing the context for the substantive complaint about the respondent’s reaction to Mr Khan’s concerns about the mail opening policy.

20 On 8 October 1997, a managers’ meeting was held which included Mr Khan and a colleague, Mr Fay. The notes of the meeting state that:

“The last documented procedures for mail opening were issued in June 1991 (circulated). Given the Office relocations due in early 1998, a representative from each “new” location has been nominated to revise the procedures - having in mind the security of remittances received via the mail, the volume, efficient handling/distribution of mail and the requirements for moving mail between offices.”

21 The notes of the meeting make it clear that four individuals, including Brian Lidbury, volunteered to draft the appropriate procedures. Mr Khan told the Tribunal that some discussion about the policy took place at that meeting.

22 On 10 October 1997 Mr Fay wrote to Mr Webster in relation to the proposed mail opening policy saying that the policy should ensure that there is no invasion of the individual’s privacy. He suggested that personal mail be marked “personal and confidential” and that employees advise others to mark their mail in such a way.

23 On the same date Mr Khan wrote to Mr Webster recommending that the policy should be that all personal mail, whether or not it is marked as such, should be delivered to the employee concerned unopened. He went on to say that he migrated to Australia from Fiji thirteen years ago and still has a large number of relatives and friends living overseas. Friends and relations unable to obtain his address sometimes write to him care of the University. He said that “I cannot see why a person with average intelligence, who is assigned the task of opening official University mail, cannot make out which is a “personal” and which is an “official” correspondence.” Mr Khan also pointed out that he found the proposed mail opening policy inconsistent with the “drawer opening” policy previously communicated to staff because the latter went to some lengths to protect an individual’s privacy whereas the former did not.

24 Mr Webster spoke to Mr Khan on 10 October 1997 and told him that he had written Mr Khan a note saying that he would pass his comments on to Mr Lidbury for consideration by the committee. They talked about the policy and Mr Khan put his views again including his belief that the same policy should be implemented throughout the entire university.

25 Mr Webster said that he was not aware of any submissions to the committee apart from those made by Mr Fay and Mr Khan.

26 On 17 October Mr Lidbury wrote to Mr Webster outlining the committee’s recommendations for the mail opening procedures in the following terms:

The University is legally entitled to have authorised staff open any mail sent to its address even though it may be directed to an individual. The Privacy committee of NSW recommends however that mail marked “private” or “confidential” addressed to an individual should be forwarded to that individual unopened.

The recommendations of the Privacy Committee of NSW will continue to be applied with Financial Services and any mail addressed to an individual and clearly marked “private” or “confidential” will be directed to that individual unopened. In addition, mail outs to individuals from Employee Unions, Unicom Credit Union, Superannuation Funds and Personnel Office will also be directed to the individuals unopened. While every care will be taken, no responsibility will be accepted for the accidental opening of “private” or “confidential” correspondence addressed to the university. Individuals are asked to ensure that “private” or “confidential” correspondence is not addressed to them at the University.

27 The respondent tendered exerpts from the University’s Financial Management Handbook which set out certain statutory requirements in relation to remittances. The policy states in part that “All correspondence received through the post, where there is a likelihood of postal remittances being received, shall be opened under supervision or in the presence of two officers as outlined in the policy above.” Mr Webster did not know whether this requirement was applied in other parts of the university.

28 On 2 February 1998 Mr Khan wrote to Mr Webster attaching a card which was “personally and privately addressed and posted to me from New Zealand.” He went on to say that “the envelope was opened quite intentionally by the office to invade my privacy as the address on the attached photocopy of the envelope had clearly indicated that it was my ‘private’ and ‘personal’ letter.”

29 On 2 February 1998 Mr Webster wrote to Mr Khan responding to his allegation that he had been discriminated against and his privacy invaded. He pointed out that the envelope referred to by Mr Khan was not marked private and confidential despite his allegations to the contrary. He said he intended passing on his submission to the University’s EEO office for their advice “with what appears to be your vexatious and/or frivolous accusations.”

30 We note that Mr Khan did not allege that the envelope was marked “private and confidential” but rather that it was “personally and privately addressed.” We have seen the envelope in question and note that it did not contain the words “private” or “confidential” but was addressed “Mohammed Shafiz Khan; c/- Macquarie University Accounting Department (Office); SYDNEY NSW 2109; AUSTRALIA.”

31 Mr Khan wrote to the Vice Chancellor, Ms Di Yerbury, on 6 February 1998 outlining his complaints about the drawer opening incident and the mail opening policy. He alleged that Mr Webster had discriminated against him on the ground of his race in the way he dealt with his complaint about the drawer opening incident. The letter to the Vice Chancellor also outlined his grievance over the opening of his personal mail maintaining that it constituted an invasion of his privacy. He said that he believed that “this discriminatory treatment against me by Mr Webster is continuing as an extension of the event of 20 February 1996.”

32 The Vice Chancellor responded on 12 February 1998 saying that she could see that the “inadvertent” opening of a personal card had caused him distress but did not think that it represented discrimination. She emphasised that the mail opening policy applies to all the staff in the Office of Financial Services. Mr Khan maintained that Ms Yerbury’s assumption that the letter had been opened inadvertently supported his case that personal mail should not be deliberately opened.

33 On 5 February 1999 Mr Khan wrote a letter to himself, not marked “private” or “confidential,” which contained a note reading, in part, “Shame on you to open and read this letter which is addressed to an indivual (sic) in his personal and private capacity.” Mr Khan complained about this situation but says that he did not receive a response from Mr Webster. Mr Webster gave evidence that he did respond but that Mr Khan must not have received it. We are satisfied, given Mr Webster’s consistent responses to Mr Khan’s previous communications, that Mr Webster did respond but that for some reason Mr Khan did not receive the response.

34 The complainant tendered examples of envelopes and their contents to establish that the mail opening policy was not being consistently applied. For example, envelopes marked “Private and Confidential” containing invoices from recruitment agencies were opened. Mr Khan agreed in cross examination that the envelopes which he submitted were not the actual envelopes containing the invoices. He said that all envelopes relating to Link Recruitment Group, for example, are pre-printed “private and confidential” so the actual envelopes would have been the same as the ones submitted. We accept, on the balance of probabilities, that the actual envelopes did contain the same notation as the ones submitted to the Tribunal.

35 Mr Khan further sought to make his point by giving evidence that letters that were not marked “Private and confidential” such as a letter from the Union to him, were given to him unopened.

Legislative provisions

36 Both the Anti-discrimination Act 1977 (the Act) and the Administrative Decisions Tribunal Act 1998 (ADT Act) have provisions which allow the Tribunal to dismiss a complaint before a full hearing has been concluded. Section 111(1) of the Act states:

"Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint".

37 Section 73(5)(h) of the ADT Act states that:

The Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.

38 By virtue of section 111(3) of the Act, both provisions operate together. That sub-section states that "Nothing in this section limits the generality of the powers conferred on the Tribunal by chapter 6 of the Administrative Decisions Tribunal Act 1997". As the respondent made the application under s 111(1) of the Act we will consider it pursuant to that sub-section.

39 The respondents did not submit that the complaint was “frivolous or vexatious” but rather that it was "misconceived" and "lacking in substance." These terms have been frequently interpreted by courts and tribunals in the context of anti-discrimination legislation at both the State and Commonwealth levels. The leading authority is Assal v Department of Health, Housing and Community Services (1992) ECO 92-409. In that case the then President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, rejected two tests that had previously been applied. The first was formulated by Justice Einfield, in the case of Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Others (1989) EOC 92-252) where His Honour suggested at p.77,452, that

"There must at the very least be available some semblance of evidence that might support or even hint at a just claim."

40 Sir Ronald Wilson noted that “A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.”

41 The second test mentioned by Sir Ronald Wilson was that suggested by Commissioner Moss, in a sex discrimination case. The Commissioner said:

"I should not exercise the power of summary dismissal contained in s.79 in this matter unless it is clear that the complainant has no reasonable prospect of success."

42 In response to this formulation Sir Ronald Wilson said:

“It is possible that a complainant's case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry, I believe it may be inappropriate in some cases to relate the criterion of "lack of substance" to the complainant's prospects of success at all. It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent. Even this brief discussion serves to confirm me in the belief that it is unwise to postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.

To sum up, then, it is clear to me that the evidence given by the complainant, and supplemented by the exhibits, falls far short of demonstrating a capacity to establish racial discrimination. It holds out no real possibility of success for the complainant in these proceedings.

43 To summarise the position in Assal, while it is unwise to be too specific, in some cases the prospects of success of the case is relevant to the question of whether it lacks substance. To be successful in an application that a complaint be dismissed as lacking in substance, the Tribunal must be satisfied that there is no real possibility of success.

44 The terms have also been considered recently by the Victorian Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. Ormiston J.A. in that case took a different view from that taken by Sir Ronald Wilson in Assal. His Honour said (at 109) that “misconceived” connotes a “misunderstanding of legal principle” while “lacking in substance” connotes an “untenable proposition of law or fact.

45 After reviewing the common law principles on summary dismissal Ormiston J.A. said that the test, at least before a hearing gets under way, is that “The complaint is either wholly bad, that is undoubtedly shown to be hopeless, or it must be allowed to proceed to an ordinary tribunal hearing.” His Honour did not elaborate on whether the test may be different after the complainant has had a chance to put his or her case.

46 On the basis of these authorities, we propose to apply the test at its highest. If there is any chance, even the remotest likelihood, that the applicant could succeed we will not dismiss it as misconceived or lacking in substance.

47 The relevant statutory provisions are those relating to race discrimination in employment. The test of what constitutes discrimination on the ground of race is set out in s 7 which states that:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(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.

48 Section 4A of the Act makes it clear that if there is more than one reason for doing a particular act, it will still be unlawful as long as unlawful discrimination is one of the reasons for doing the act, whether or not it is the dominant or a substantial reason.

49 Section 8 sets out the circumstances in which discrimination involving an applicant or an employee will be unlawful. It states that:

(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.

50 In order to make out his case, Mr Khan needs to establish, on the balance of probabilities, that he was discriminated against (as defined in s 7 and 4A) by his employer in the terms or conditions of employment which the employer afforded to him (s 8(2)(a)). There was no suggestion that the alleged discrimination was indirect or that it was done on the basis of a characteristic of Mr Khan’s race. This means that Mr Khan must establish that in responding to his concerns about mail opening policy his employer (vicariously, through the actions of employees such as Mr Webster) treated him less favourably than in the same circumstances, or in circumstances which are not materially different, the employer treats or would treat a person of a different race.

51 Mr Khan’s conclusion in relation to the mail opening policy was that the committee accepted Mr Fay’s recommendations but not his own and that the University’s failure to accept his submission was based on his race. Further he says that his subsequent complaints about the policy were ignored and that Mr Webster’s support for Ms Wheeler in relation to the drawer opening incident demonstrated that Mr Webster was biased against him. He believes that the reason for this bias is that he does not come from an Anglo-Saxon background.

52 Mr Khan maintained that no-one else in the office was affected by the mail opening policy because no-one else complained. He agreed that there are other people employed in the Financial Services Department who are migrants from a non-English speaking background and that at least one of them is Indian.

53 Mr Webster said that race had nothing to do with his response to Mr Khan’s submissions about the mail opening policy. He disagreed with Mr Khan that he ignored everything he said and was prejudiced against him.

54 The respondent submitted that there was no evidence of less favourable treatment on the ground of race in relation to the terms and conditions of Mr Khan’s employment. In support of this they pointed out that mail addressed to Mr Khan’s had been dealt with in accordance with the policy. That is, mail addressed to him, but not marked “private” or “confidential” had been opened.

55 In relation to the drawer opening incident the respondent maintains that race was not mentioned at the time so that incident can have nothing to do with a subsequent complaint of race discrimination. We do not agree with this reasoning. The previous complaint did, in Mr Khan’s opinion, have something to do with race. That is why he took his complaint to the EEO Office. We have also found that Ms Wheeler mentioned Mr Khan’s country of origin in a derogatory way during the incident. The real question is whether Mr Webster’s treatment of Mr Khan’s complaint about the drawer opening incident can have any bearing on whether or not his subsequent response to Mr Khan’s concerns about the mail opening policy was racist.

56 We do not believe it is necessary to answer this question because our findings show that Mr Khan was not treated any less favourably than any other staff member in relation to his concerns about the mail opening policy. Mr Khan had an opportunity to discuss the policy at the initial management meeting in October 1997. He drafted a memo to Mr Webster about his concerns and Mr Webster discussed the issue with him and forwarded the memo to the committee members. Mr Fay’s memo was also forwarded to the committee. While there is no direct evidence as to whether the committee took Mr Khan’s or Mr Fay’s views into account, it cannot be assumed merely because they did not adopt Mr Khan’s views, that they did not consider them.

57 Mr Webster responded to Mr Khan’s subsequent complaints about the policy even though Mr Khan did not receive one of the memos. The only evidence that Mr Khan can point to in support of his submission that he was treated less favourably than others is that the policy was not changed to coincide with his views. What his case comes down to is the applicant’s contention that if a non-Indian had expressed the same views as he did, the University would have changed its policy. We do not accept that there is any possibility that this is the case given the fact that the policy itself was found by the President of the Board not to be discriminatory, and it was based on advice from the New South Wales Privacy Committee and statutory and policy obligations in relation to remittances.

58 Mr Kahn cannot accept that other people may legitimately disagree with him about the mail opening policy. He has sought at every point to argue his case and to point out what he considers to be the inconsistencies and inadequacies of the policy. At times he has gone to extreme lengths to prove his point, including writing a letter to himself. Mr Webster has considered and responded to these concerns but at times has been frustrated with their repetition and labelled them, on one occasion, as “frivolous and vexatious”.

59 There is clearly a history of strained relations between Mr Khan and Mr Webster. This became obvious during Mr Khan’s questioning of Mr Webster and was also demonstrated by the fact that they communicate so much in writing, and that Mr Khan feels the need to seek outside assistance through the EEO Office.

60 The difficulty for Mr Khan is that while it is possible that some of this ill-will is based on racial prejudice the Act sets out a very specific and limited test for direct discrimination. There must be proof, on the balance of probabilities, that the employer treated Mr Khan less favourably than they would have treated a non-Indian in the same or similar circumstances. We have found no evidence of less favourable treatment apart from the fact that the University did not change its policy to reflect Mr Khan’s views. We do not think, on the basis of the evidence before us, that there is any possibility that Mr Khan could establish that the University would have treated a non-Indian who put the same views any differently. Beyond Mr Khan’s assertions, there is nothing material before us which would in any way give substance to his complaint.

61 After having considered the Complainant's evidence at its highest point, we are satisfied that the complaint is both "misconceived" and "lacking in substance".

62 The Tribunal orders that the complaint be dismissed.