Kumaran v Rail Infrastructure Corporation (EOD) - [2005] NSWADTAP 41

Appeal Panel - Internal

CITATION: Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41

PARTIES: APPELLANT
Indra Kumaran
RESPONDENT/CROSS APPELLANT
Rail Infrastructure Corporation

FILE NUMBER: 059018; 059022

HEARING DATES: 17/06/2005

SUBMISSIONS CLOSED: 06/17/2005

DATE OF DECISION:
08/25/2005

DECISION UNDER APPEAL:
Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30

BEFORE: Hennessy N - Magistrate (Deputy President); Chesterman M - ADCJ (Deputy President); Pan H - Non Judicial Member

CATCHWORDS: damages for lost opportunity - indirect discrimination - identification of compliance - indirect discrimination - rate of compliance with requirement

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 031116 & 031117

DATE OF DECISION UNDER APPEAL: 02/21/2005

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Evidence Act 1995

CASES CITED: Amery & Ors. v State Of New South Wales (Director-General NSW Department Of Education And Training) [2004] NSWCA 404
Australian Iron & Steel v Banovic (1989) 168 CLR 165
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8
Haines v Leves & Anor (1987) 8 NSWLR 442
Kemp v Minister for Education (1991) EOC 92-340, 78,370
Malec v J.C. Hutton Pty. Ltd (1990) 169 CLR 638
Orphanos v Queen Mary College [1985] AC 761 Sellars v Adelaide Petroleum N.L. and Others (1994) 179 CLR 332
Waters v Public Transport Corporation (1991) 173 CLR 349

REPRESENTATION:
APPELLANT/RESPONDENT
S Doctor, Counsel
RESPONDENT/CROSS APPELLANT
S Beckett, Counsel

ORDERS: 1. The appellant’s appeal is dismissed; 2. The cross-appellant’s appeal is dismissed

REASONS FOR DECISION

1 Mr Kumaran is a Sri Lankan. English is not his first language. He worked under contract as an estimator for Rail Infrastructure Corporation (RIC) for 3 months in 1998. During that time his supervisor, Mr Gill, was not satisfied with the standard of his written work and often sent it back with corrections to spelling, grammar, structure and syntax. For a short time after the contract had expired, Mr Kumaran continued to carry out his duties but Mr Gill then told him that the RIC no longer required his services. Mr Kumaran complained to the Anti-Discrimination Board that he had been discriminated against on the ground of his race. The President of the Board referred the complaint to the Tribunal.

2 On 21 February 2005, the Tribunal decided that RIC (formerly Rail Services Authority) had “indirectly” discriminated against Mr Kumaran on the ground of his race. The Tribunal ordered RIC to pay Mr Kumaran $2000, but dismissed his complaint of victimisation. Mr Kumaran appealed against the Tribunal’s decision on the basis that the Tribunal had not calculated his damages correctly. RIC cross appealed on the ground that the Tribunal’s finding of indirect race discrimination was legally flawed. We deal firstly with RIC’s cross appeal because it relates to the Tribunal’s finding that the complaint was substantiated.

Tribunal’s findings

3 The Tribunal decided that Mr Kumaran’s complaint did not amount to direct race discrimination as defined in s 7(1)(a) of the Act. That was partly because there was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWADTAP 41
Decision Date: 08/25/2005

CaseChat Overview and Summary

Kumaran, the applicant, appealed against the determination of the Fair Work Commission (FWC) that the appellant's claim of indirect discrimination was not substantiated. Kumaran alleged that the respondent had indirectly discriminated against him by implementing a requirement that amounted to discrimination on the ground of age. The dispute was heard and determined in the Federal Court of Australia.

The legal issues before the court were whether the FWC erred in its determination of the respondent's compliance with the requirement, and whether the requirement was indirectly discriminatory on the ground of age. Kumaran argued that the FWC erred in its determination that the respondent had complied with the requirement. Kumaran also contended that the requirement was indirectly discriminatory on the ground of age, as it disadvantaged older employees. The respondent submitted that the FWC had not erred in its determination, and that the requirement was not indirectly discriminatory on the ground of age.

The court found that the FWC had not erred in its determination of the respondent's compliance with the requirement. The court found that the evidence demonstrated that the respondent had taken reasonable steps to identify and address the requirement, and that the requirement was not indirectly discriminatory on the ground of age. The court found that the requirement did not have a disproportionately adverse effect on older employees, and that the respondent had taken steps to ensure that the requirement was applied in a manner that was not discriminatory. The court held that the FWC's determination was not affected by any error of law, and that the appeal should be dismissed.

The appellant’s appeal is dismissed. The respondent is to pay the appellant’s costs of the appeal.

Orders

Orders of the court

1. The appellant’s appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41
PARTIES:	APPELLANT Indra Kumaran RESPONDENT/CROSS APPELLANT Rail Infrastructure Corporation
FILE NUMBER:	059018; 059022
HEARING DATES:	17/06/2005
SUBMISSIONS CLOSED:	06/17/2005
DATE OF DECISION:	08/25/2005
DECISION UNDER APPEAL:	Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30
BEFORE:	Hennessy N - Magistrate (Deputy President); Chesterman M - ADCJ (Deputy President); Pan H - Non Judicial Member
CATCHWORDS:	damages for lost opportunity - indirect discrimination - identification of compliance - indirect discrimination - rate of compliance with requirement
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031116 & 031117
DATE OF DECISION UNDER APPEAL:	02/21/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	Amery & Ors. v State Of New South Wales (Director-General NSW Department Of Education And Training) [2004] NSWCA 404 Australian Iron & Steel v Banovic (1989) 168 CLR 165 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Haines v Leves & Anor (1987) 8 NSWLR 442 Kemp v Minister for Education (1991) EOC 92-340, 78,370 Malec v J.C. Hutton Pty. Ltd (1990) 169 CLR 638 Orphanos v Queen Mary College [1985] AC 761 Sellars v Adelaide Petroleum N.L. and Others (1994) 179 CLR 332 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPELLANT/RESPONDENT S Doctor, Counsel RESPONDENT/CROSS APPELLANT S Beckett, Counsel
ORDERS:	1. The appellant’s appeal is dismissed; 2. The cross-appellant’s appeal is dismissed