Lal v President, Anti-Discrimination Board of New South Wales

[2000] NSWADT 68

CITATION:	Lal -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Dhansuh Lal RESPONDENT President, Anti-Discrimination Board of New South Wales
FILE NUMBER:	991108
HEARING DATES:	10/02/2000
SUBMISSIONS CLOSED:	02/10/2000
DATE OF DECISION:	05/31/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Review of President's decision to decline to entertain complaint
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Crewdson v President, Anti-Discrimination Board of New South Wales [2000] ADT 60 Langley v Niland [1981] 2 NSWLR 104 Re NSW Corporal punishment in schools case (1986) EOC 92-160 Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 IW v City of Perth (1997) 71 ALJR 943 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
REPRESENTATION:	APPLICANT In person RESPONDENT G De Coursey, solicitor
ORDERS:	1. The decision of the President to decline to entertain the complaints of race discrimination and victimisation lodged by the applicant on 26 August 1999 is set aside.; 2. The matter is remitted to the President for reconsideration in accordance with the Tribunal’s reasons for decision.

1 This is an application by Mr Lal for the Tribunal to review a decision made by the President of the Anti-Discrimination Board (the President). The President’s decision was to decline Mr Lal’s complaints of discrimination, harassment and victimisation because they did not disclose a contravention of the Anti-Discrimination Act 1977 (the Act).

Jurisdiction

2 The Tribunal has jurisdiction to hear this matter pursuant to s 90(3) of the Act which states that:

(3) If the President declines under subsection (1) to entertain a complaint for any reason other than that the complaint is vexatious, misconceived or lacking in substance, the complainant may apply to the Tribunal for a review of the President's decision.

3 In this case, since the reason for declination was that the complaints do not disclose a contravention of the Act, s 90(3) allows Mr Lal to apply to the Tribunal for a review of that decision.

Issue

4 The issue in this case is whether the President made the correct and preferable decision when he declined Mr Lal’s complaints on the ground that they do not disclose any contravention of the Act.

History of the complaint

5 On 26 August 1999 Mr Lal, the Manager of the Ad Traffic Department with Eastern Suburbs Newspapers, faxed a letter to the President setting out his complaint of “discrimination and victimisation.” Mr Lal is Indian. His complaint included the following allegations:

• in mid 1992 the then General Manager, Graham Harris, said, in Mr Lal’s presence, that he hated Indians and that if he had his way he would never employ any Indian in the company;
• on 18 December 1992, Mr Lal had a conversation with Graham Harris’ son, Charles Harris, in which (as revealed in officer’s memorandum dated 2 September 1999) Charles Harris approached him and called him a ‘poofter’. Mr Lal took offence and replied “your father is a poofter.” According to the complaint letter, after this happened Mr Lal reported the incident to Graham Harris and apologised. Mr Graham Harris told Mr Lal that he would never forget that incident and he would make life difficult for Mr Lal from then on;
• by letter of 14 January 1993 from Graham Harris, Mr Lal was warned about the December incident and advised that “I will not tolerate further any continuance of this type of behaviour by you and if it occurs again you will be dismissed”;
• during 1993/94/95 Mr Graham Harris constantly harassed Mr Lal for petty things;
• on 25 March 1996 Mr Lal wrote a letter to Michael Hannan, the Chief Executive, stating that he “had to tolerate the General Manager’s racist remarks and innuendos on my religious faith and various wild and unfounded accusation . . . It pains me to say that I feel I have been victimised, discriminated against and harassed because of the incident that happened three years ago involving Mr Charles Harris which was not initiated by me”;
• Mr Lal met with the Chief Executive who assured him that he would investigate the matter and advise him but he did not hear anything further;
• harassment by Graham Harris including “wild and unfounded accusations” continued after this time;
• on 9 July 1999 Graham Harris announced his retirement;
• a revised Management Organisation Chart was circulated on 29 July 1999 with each existing position being renamed and personnel reshuffled;
• on 30 July 1999 Mr Lal was dismissed from his position - no other existing staff member lost their job;
• a non-Indian person was appointed to replace Mr Lal and commenced on 2 August 1999;
• when he was dismissed the new general manager told Mr Lal that the decision to dismiss him had already been made because of his past history relating to the retiring General Manager, Graham Harris.

6 On 2 September 1999 an officer of the Anti-Discrimination Board rang Mr Lal and asked him what type of discrimination he was complaining about. The memo prepared by the officer after this conversation states, in part, that:

C (complainant) advised that C (complaint) was more about victimisation rather than discrimination. (Words in brackets added.)

7 On 2 September 1999, the President wrote to Mr Lal advising him that he would have to provide more information which established a link between the dismissal and his race before his complaint could be accepted.

8 On 3 September 1999 Mr Lal wrote to the President that “when I was asked to leave the company premises, without notice, the new General Manager remarked that this was due to ‘your past history with Graham’(the retiring General Manager) who had discriminated against me and harassed me throughout my employment with Courier Newspapers.”

9 On 23 September 1999, the officer dealing with the complaint wrote a memorandum which said, in part, that:

Rang C (complainant)- advised that the information he supplied showed no link with a ground of discrimination in particular his race. Mr Lal agreed that his C (complaint) has nothing to do with race, it is about victimisation. (Words in brackets added.)

10 On 29 September 1999, the President made a decision, based on a recommendation from an officer of the Board, to decline the complaint as not disclosing any contravention of the Act. The reasons given for the recommendation were as follows:

To disclose a contravention of the ADA a complainant must have a complaint which falls under a ground and area covered by the ADA.
While the area of the complaint is clear and covered under the ADA, the ground of discrimination is absent. Mr Lal has been given the opportunity to supply information which links the actions of his employer with a ground of unlawful discrimination.

Mr Lal clearly states in his letter of complaint that the motivation for his employer’s actions was of a personal nature and not related to a ground of unlawful discrimination or harassment.

11 The President conveyed his decision to decline the complaint to Mr Lal by letter of 6 October 1999. A statement of reasons was attached to that letter. After setting out the nature of the alleged discrimination and the information considered, the President gave the following reasons for declining the complaint:

The reasons that I decided to decline your complaint on the basis that I am satisfied that it does not disclose a contravention of the Anti-Discrimination Act 1977 (NSW) are as follows:

The Anti-Discrimination Board can only investigate complaints where the conduct is alleged to be discriminatory falls within a ground and an area of discrimination covered by the Anti-Discrimination Act 1977 (NSW) (the Act). This is because it is not the intention of the Act to cover the circumstances of your complaint. In your letter of compliant received on 26 August 1999, you wrote that on the 18 December, 1992, you were involved in an incident at work. You state that Mr Graham Harris, became involved in this incident and that as a result of this incident, Mr Harris stated “that he would never forget the incident and would make life difficult for you from here on . . . ” On 2 September, 1999, you were contacted by an officer of the board and told that the information you had provided so far did not constitute unlawful discrimination. On 2 September, 1999, a letter was sent to you asking you to provide a link between your dismissal and a ground of unlawful discrimination.

On 20 September, 1999 the Board received a facsimile from you. In this facsimile you again pointed to the incident on 18 December, 1992, as being the reason for your dismissal. In this facsimile you wrote “the General Manager held a grudge against me since the incident on 18 December, 1992 . . .”

In light of the information provided by you, I have taken the view that the motivation for your employer’s actions, was of a personal nature and not related to a ground of unlawful discrimination or harassment.

On 29 October 1999, Mr Lal filed an application for review of this decision with the Tribunal.

12 It was not clear from the documents or from my questioning of him, whether Mr Lal intended to complain merely about the dismissal or whether his complaint also involved allegations of harassment and discrimination during the course of his employment. However, based on all the information I have, I find that Mr Lal has made three complaints:

• discrimination on the ground of race by being dismissed from his employment;
• victimisation by being dismissed from his employment; and
• harassment on the ground of race during the course of his employment.

13 Although the statement of reasons does not expressly refer to the complaint of victimisation, counsel for the President advised that it was the President’s intention to decline all three complaints as not disclosing a contravention.

Relevant legislation and case law

14 Under s 90 and s 91(1A) of the Act, the President is entitled to decline a complaint if it does not disclose any contravention of the Act. If that happens the complainant cannot request that the complaint be referred to the Administrative Decisions Tribunal for hearing. But the complainant can apply to the Tribunal, as Mr Lal has done, for a review of the President’s decision. The relevant sections are as follows:

90 President may decline to entertain complaint

(1) Where, at any stage of the President's investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may, by notification in writing addressed to the complainant, decline to entertain the complaint.

(2) The President shall, in a notification under subsection (1), advise the complainant of:

(a) the reason for declining to entertain the complaint, and

(b) where section 91 (1) applies to the notification the rights of the complainant under that subsection.

(3) If the President declines under subsection (1) to entertain a complaint for any reason other than that the complaint is vexatious, misconceived or lacking in substance, the complainant may apply to the Tribunal for a review of the President's decision.

91 Reference of complaint to Tribunal at requirement of complainant

(1) Where the President has given a complainant a notification under section 89B (4) or 90 (1), the complainant may, within 21 days after the date of that notification, by notice in writing served on the President, require the President to refer the complaint to the Tribunal.

(1A) Subsection (1) does not apply to a notification in which the President has given, as a reason for declining to entertain a complaint, that what has been alleged in the complaint does not disclose any contravention of this Act.

(2) On receipt of a notice under subsection (1), the President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint.

15 Under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), when reviewing decisions the Tribunal must decide what the correct and preferable decision is. The Tribunal then has the power to affirm, vary or set aside the decision. Section 63 states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16 Mr Lal was not legally represented and did not advance any legal submissions, However, following a directions hearing, he filed a submission with the Tribunal dated 20 January 2000, which said, among other things, that

I never agreed with the comment (Anti-Discrimination Board’s file not of 23 September 1999) that my case “has nothing to do with race, it is about victimisation.” What I said was that it was a case of discrimination followed by victimisation because of the particular incident. I did not state that “in the next 7 years there were not problems that ever appeared to be related to this comment and that he does not think his race is the reason he was dismissed” (Para 4 ADB submission). I had said the racist comments were being made every now and then.”

17 The main thrust of the submissions by counsel for the President was that the complaint did not disclose a contravention of the Act because Mr Lal could not establish any link between his dismissal and his race.

Meaning of “does not disclose any contravention of this Act”

18 In Crewdson v President, Anti-Discrimination Board of New South Wales [2000] ADT 60, (Crewdson’s Case) this Tribunal discussed the meaning of the words “does not disclose any contravention of this Act” in s 91(1A) of the Act. Judicial Member Rees quoted Hunt J in Langley v Niland [1981] 2 NSWLR 104, a case dealing with the meaning of sections 90 and 91 of the Act when in a slightly different form. I agree that this case is binding on the Tribunal.

19 The Tribunal in Crewdson’s Case extracted four relevant points from certain quoted passages of Hunt J’s judgement in Langley v Niland. Those points, set out at [35], are that:

(a) the words "frivolous, vexatious, misconceived or lacking in substance" when used in section 90(1) of the Act all refer to an absence, or insufficiency, of factual merit in the complaint lodged with the President

(b) the words "or that for any other reason the complaint should not be entertained" when used in section 90(1) of the Act are of sufficient breadth to permit the President to decline to entertain a complaint because it does not disclose a contravention of the Act

(c) the President, and others interpreting the Act, should take a liberal approach when determining whether a complaint lodged by a lay person discloses a contravention of the Act

(d) there is no simple formula for determining when a complaint which appears to be untenable should be declined because of the absence of factual merit and when it should be declined because it does not disclose a contravention of the Act.

20 The Tribunal went on to say at [36] that:

This case directly raises the final point which is how to distinguish between a complaint which lacks factual merit and a complaint which fails to disclose a contravention of the Act. When determining this issue the relevant portions of the Act must be given their ordinary and natural meaning and, when determining that meaning, it is appropriate to prefer a meaning which would promote the objects of the legislation ( see section 33 Interpretation Act 1987). In my opinion the terms of section 90 alone do not resolve the issue of construction and it is necessary to examine the objectives of the Act.

21 The Tribunal in Crewdson’ Case concluded, on the basis of its analysis of Hunt J’s decision in Langley v Niland, that:

If the complainant alleges a contravention of a specific section of the Act (for example, section 50) or alleges behaviour prohibited by the Act (for example, sex discrimination in hiring), if the respondent is someone who is arguably amenable to the Act and if the complainant evinces a general awareness of the material facts which must be proved if the complaint is to succeed and if, after reasonable investigation, there is arguably some evidence in support of the material facts then, in my opinion, the complaint is one which must not be declined on the ground that it does not disclose a contravention of the Act. It may not in fact disclose a prima facie contravention of the Act because it is so factually weak that it should be declined because it is "misconceived" or "lacking in substance". Nevertheless, because in most circumstances the complaint will be one lodged by a lay person without legal assistance, once the conditions previously mentioned have been satisfied the President should not require the complainant, to use the words of Hunt J, to "allege the relevant facts with the particularity of an indictment or a pleading" in order for the complaint to be characterized as one which discloses a contravention of the Act.

22 I agree with the thrust of the Tribunal’s analysis and conclusion in Crewdson’s Case. However, I would re-frame the test set out in that case in two minor respects. Firstly I would put the third requirement for a reasonable investigation to disclose some evidence in support of the material, before any requirement that the complainant evince a general awareness of the material facts which must be proved. Once the President is satisfied that the complaint alleges a contravention of the Act and identifies a respondent who is arguably amenable to the Act, he must proceed to “investigate” the complaint. Section 89(1) of the Act requires the President to investigate each complaint. “Investigation” is not defined in the Act. In Re NSW Corporal punishment in schools case (1986) EOC 92-160 at 76,583 Mathews J found that investigation was mandatory. However she concluded that failure to contact a potential respondent does not mean that an investigation has not been carried out. After investigation, the President must examine the evidence relevant to the material facts which need to be made out to establish a breach of the Act. As long as there is some evidence, even a mere assertion by the complainant, of each material fact relevant to the alleged contravention, the President must not decline the complaint as not disclosing a contravention of the Act. The weaker the evidence, the more likely it is that the President will be justified in declining the matter as lacking in substance or misconceived under s 90(1).

23 The second adjustment I would make to the test in Crewdson’s Case relates to the situation where the complainant “evinces a general awareness of the material facts which must be proved if the complaint is to succeed.” I take this to mean that where the complainant is unable to point to relevant evidence or make relevant assertions which would tend to support the material facts, the President is justified in declining the complaint as not disclosing a contravention. This requirement appears to be part of the previous requirement that it is not arguable that there is some evidence in support of the material facts. Whether the source of evidence is the complainant or some other person or document, the outcome is that it is not arguable that there is some evidence in support of the material facts.

24 Based on these observations, I would re-frame the test set down by the Tribunal in Crewdson’s Case to state that:

The President may decline a complaint as not disclosing a contravention of the Act if:
• the complainant fails to allege a contravention of a specific section of the Act (for example, section 50) or does not allege behaviour prohibited by the Act (for example, sex discrimination in hiring), or
• the respondent is not a person who is arguably amenable to the Act; or
• after reasonable investigation, including discussions with the complainant, it is not arguable that there is some evidence in support of the material facts.

25 As in this case, the Tribunal in Crewdson’s Case did not have to consider the extent to which the existence of a particular exception would justify a decision that the complaint does not disclose a contravention of the Act. Hunt J in Langley v Niland [1981] 2 NSWLR 104 said:

It may be that what is complained of falls within one of the general exceptions to the Act provided for in Pt VI, to cite a very obvious example.

26 The circumstances, if any, in which the existence of an exception would justify a decision to decline a complaint because it does not disclose a contravention of the Act should be left for further consideration in an appropriate case.

27 Each of the elements listed above at paragraph 24 will be applied to the three complaints in contention.

Complaint of discrimination on the ground of race by being dismissed from his employment

28 Firstly, Mr Lal’s complaint alleges behaviour prohibited by the Act, namely race discrimination in employment. Mr Lal disagrees with the Board’s interpretation of his comments and maintains that he was discriminated against on the ground of his race. For the purpose of determining these proceedings, I must take into account Mr Lal’s allegations as comprising “relevant factual material” pursuant to s 63(1)(a). My decision must be based on Mr Lal’s current allegations. Consequently there is no need for me to make any findings of fact about what he said to the officers of the Board.

29 Mr Lal’s complaint involves an alleged breach of s 8(2)(c) of the Act which states that:

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

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

30 Direct race discrimination is defined in s 7 of the Act in the following terms:

(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,

(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.

31 Secondly, although Mr Lal did not identify the full name of the legal entity which employs him, I accept that his employer is amenable to the Act.

32 The third requirement is that, after reasonable investigation, including discussions with the complainant, it is arguable that there is some evidence in support of the material facts. In this case the President asked the complainant to provide further particulars of his claim but has not sought any information from his employer. In cases where the first two requirements are not made out, there will be no need for the President to contact the respondent. But in most cases where the complainant has alleged a contravention of the Act, or behaviour prohibited by the Act, and the respondent is amenable to the Act, reasonable investigation would include contacting the respondent and seeking their response to the allegations. Because the President did not do so in this case, he is left with the evidence in support of the material facts as articulated by Mr Lal.

33 Even without any evidence from the respondent, there is arguably some evidence provided by Mr Lal in support of the material facts. In order to make out a case of direct race discrimination, Mr Lal must establish that his employer on the ground of race (or a characteristic of race) treated him less favourably than it treated or would have treated a person of a different race in the same circumstances, or in circumstances which were not materially different. In Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 at [45] the Appeal Panel identified two components of this question, namely differential treatment and causation.

34 The evidence of differential treatment is Mr Lal’s allegation that he was the only employee to be dismissed from employment following what appears to have been a “restructure” undertaken by a new General Manager. There was no evidence as to the race of the existing employees who retained their jobs but if they were all of a different race from Mr Lal, one possible inference which may arise is that Mr Lal suffered differential treatment.

35 In relation to the issue of causation, Mr Lal alleged that race was at least one of the reasons for his dismissal. Mr Lal explained the dismissal by saying that it was because of his past relationship with Graham Harris. According to Mr Lal, that relationship deteriorated at the end of 1992 after the incident involving Mr Harris’ son. Mr Lal also alleged that Mr Harris had previously said that he hated Indians and that if he had his way he would never employ any Indian in the company. The comments of Mr Graham Harris that he hated Indians may explain his treatment of Mr Lal. That treatment allegedly resulted in a poor relationship and Mr Lal’s ultimate dismissal. It could be argued that one of the reasons for his dismissal was his acrimonious relationship with Mr Harris without which he would not ultimately have been dismissed. On this analysis “race” could be at least one of the reasons for Mr Lal’s dismissal. Consequently, there is arguably some evidence in support of the material facts.

36 The President gave one set of reasons for declining all three complaints. Based on the information provided by the complainant, the President concluded that “the motivation for your employer’s actions, was of a personal nature and not related to a ground of unlawful discrimination or harassment.”

37 In Crewdson’s Case the Tribunal discussed similar reasoning which relied on findings about the motivation of an employer. I agree with the Tribunal’s comments set out at paragraph 50, that a racist motivation is not a requirement of race discrimination. The Tribunal said that:

The President looked to the motivation of those who negotiated and executed the deed when he stated that "victimisation under the Act requires an element of retaliation on the part of the respondent in inflicting the detriment, and it is clear that the actions of the respondents were taken in the context of resolving the complaint, not because Mr Crewdson had made the complaint". In my opinion this statement is wrong for as Kirby J stated in IW v City of Perth (1997) 71 ALJR 943 at 975 "... the weight of authority supports the proposition that it is unnecessary for a complainant to show that the alleged discriminator intended to discriminate or set out with that motivation and purpose ...". Whilst Kirby J made these remarks when discussing the necessary proofs in a case of direct discrimination they are of relevance, in my opinion, to a complaint of victimisation. The issue of causation should be approached in victimisation cases as it is in direct discrimination cases. As this Tribunal said in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 "When considering causation, it is the grounds or the reasons for a respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant.

38 These findings lead me to conclude that the President did not make the correct and preferable decision in declining Mr Lal’s complaint of race discrimination in the area of dismissal from employment, as not disclosing a contravention of the Act.

Complaint of victimisation by being dismissed from his employment

39 Mr Lal’s employer is arguably amenable to the Act, so the second requirement set out at paragraph 24 above is made out.

40 Mr Lal’s complaint alleges behaviour prohibited by the Act, namely dismissal on the ground that he alleged that a person had committed an act which would amount to a contravention of the Act. This involves s 50 of the Act which states that:

(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.

41 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out the four elements required to make out a complaint of victimisation. The Tribunal said, at p 78,986, that:

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.

42 The third element of the test is whether, after reasonable investigation, including discussions with the complainant, it is arguable that there is some evidence in support of the material facts. In this case, Mr Lal alleges that his employer dismissed him and that he suffered a detriment as a result of losing his job. The only ground on which that detriment could have occurred in the circumstances of this case is that set out in s 50(c). Mr Lal’s complaint makes it clear that the thing that he did, pursuant to s 50(c), was to write a letter to Michael Hannan, the Chief Executive, on 25 March 1996, stating that he “had to tolerate the General Manager’s racist remarks and innuendos on my religious faith and various wild and unfounded accusation . . . It pains me to say that I feel I have been victimised, discriminated against and harassed because of the incident that happened three years ago involving Mr Charles Harris which was not initiated by me.”

43 The next element that Mr Lal would have to establish pursuant to s 50 is that his dismissal was “on the ground” of the allegations in this letter. Mr Lal met with the Chief Executive after writing the letter. He allegedly assured him that he would investigate the matter and advise him but he did not hear anything further. Mr Lal allegedly attempted to obtain an interview with Mr Hannon in relation to his concerns but was unsuccessful and ultimately did not pursue his concerns.

44 Although Mr Lal has not put forward any direct evidence of a connection between the allegations in his letter and his dismissal, he asserts that there is a connection. In the absence of further investigation, including any material from the employer on this point, it cannot be concluded that there is no evidence in support of this assertion.

45 These findings lead me to conclude that the President did not make the correct and preferable decision in declining Mr Lal’s compliant of victimisation as not disclosing a contravention of the Act.

Harassment on the ground of race during the course of his employment

46 Mr Lal alleged harassment on the ground of race against his employer. To establish a breach of the Act, Mr Lal would have to bring his allegations of harassment within the provisions of s 7 and s 8 of the Act. Section 7 is set out above at paragraph 30. Section 8(2)(a) states that:

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,

47 The Act also requires that a complaint must be lodged within 6 months after the date on which the contravention of the Act is alleged to have occurred. Section 88(3) requires that:

(3) A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.

(4) Notwithstanding subsection (3), the President, on good cause being shown, may accept a complaint which is lodged more than 6 months after the date referred to in that subsection.

48 Mr Lal has not specified any incidents of alleged harassment which occurred within the 6 months prior to lodging his compliant.

49 In a letter dated 2 September 1999, the President requested Mr Lal to provide reasons for lodging out of time. Mr Lal responded by letter received by the Board on 17 September 1999. In that letter he said, among other things, that “I did not make my complaint earlier as I was afraid that if I made any complaints I would lose my job.” The President did not make a decision to accept or not to accept any of Mr Lal’s complaints out of time, presumably because he came to a view that they did not disclose a contravention of the Act.

50 The first two elements of the test quoted above at paragraph 24 are plainly made out in relation to this complaint. As to the third element, the incidents identified by Mr Lal as occurring in mid 1992 which involve threats from Mr Harris and racist comments, could arguably support an allegation of direct race discrimination by means of harassment. Rather than decline this complaint, the President should have made a decision about whether or not to accept it out of time. While not wishing to pre-empt that decision in the absence of any submission from the President, it appears to me that Mr Lal had a very good reason for not lodging a complaint earlier, namely fear of losing his job.

51 These findings lead me to conclude that the President did not make the correct and preferable decision in declining Mr Lal’s compliant of harassment as not disclosing a contravention of the Act.

52 I also endorse the remarks of the Tribunal in Crewdson’s Case on the question of costs. In many cases, the President declines a complaint under s 90(1) and the complainant exercises his or her right to have the matter referred to the Tribunal. Where that complaint is ultimately dismissed, the Tribunal should, in the absence of any truly exceptional circumstances, order the complainant to pay the respondent’s costs.

Orders

53 The Tribunal makes the following orders:

1. The decision of the President to decline to entertain the complaints of race discrimination and victimisation lodged by the applicant on 26 August 1999 is set aside.

2. The matter is remitted to the President for reconsideration in accordance with the Tribunal’s reasons for decision.