Khan v Macquarie University

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…