Kumaran v Rail Infrastructure Corporation

CITATION:	Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Indra Kumaran FIRST RESPONDENT Rail Infrastructure Corporation SECOND RESPONDENT Laughlin Executives Pty Ltd
FILE NUMBER:	031116 & 031117
HEARING DATES:	20/05/2004-21/05/2004, 20/08/2004
SUBMISSIONS CLOSED:	08/20/2004
DATE OF DECISION:	02/21/2005
BEFORE:	Rice S - Judicial Member; Gill M - Non Judicial Member; O'Sullivan M - Non Judicial Member
APPLICATION:	Race Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Amery & ors v State of New South Wales (Director-General NSW Department of Education And Training [2004] NSWCA 404 Australian Medical Council v Wilson (1996) 68 FCR 46 Commissioner of Police v The Estate of Edward John Russell & Ors (2002) 55 NSWLR 232 Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745 Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 Feletti v Kontoulas [2000] NSWCA 59 Fraoucene v Caruana t/as GAC Property Management Services [2005] NSWADT 1 French v Gosford City Council [2003] NSWADT 273 Li & Anor -v- Westbus Pty Ltd & Anor [2002] NSWADT 260 Malec v J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 Sellars v Adelaide Petroleum N.L. and Others (1994) 179 CLR 332 Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT R Banks, solicitor & A Woods,solicitor SECOND RESPONDENT R Keller
ORDERS:	1. That the first respondent pay to the Applicant the sum of $2,000 as compensation for loss and damage.; 2. That the complaint against the second respondent be dismissed.; 3. The victimisation complaint against the first respondent is dismissed.; 4. That each party shall pay their own costs.

Decision

1 For the reasons we give below, Mr Kumaran is successful in his complaint of discrimination against Rail Infrastructure Corporation, and unsuccessful in his complaint of victimisation.

History

2 Mr Indira Kumaran worked as an estimator at what was then Rail Services Authority of New South Wales (RSA) for three months in 1998. (RSA has since become Rail Infrastructure Corporation).

3 Although he worked there, Mr Kumaran was not employed by RSA. He had an agreement with an employment agency, Laughlin Executives Pty Ltd (Laughlin), in which he agreed that each assignment he accepted from Laughlin was a separate contract of employment with Laughlin. So Mr Kumaran was an employee of Laughlin, on assignment to RSA.

4 When RSA had sought from Laughlin assignment of an estimator, Laughlin sent Mr Kumaran for an interview. He was interviewed by Mr Peter Gill, a Senior estimator with RSA who then contacted Laughlin and accepted the assignment of Mr Kumaran’s services for three months.

5 After three months Mr Kumaran had not been told of his future status with RSA. He continued to attend to his assigned duties, and asked both RSA and Laughlin for advice as to his future. Mr Gill then told Laughlin that…