Lian v Sydney Local Health Network

[2012] NSWADT 58

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Lian v Sydney Local Health Network [2012] NSWADT 58
Hearing dates:	21 March 2012
Decision date:	02 April 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave for the applicant's complaint of sex and race discrimination in employment to proceed is refused.
Catchwords:	LEAVE - alleged discrimination on ground of race and sex in employment - complaint declined by President, Anti-Discrimination Board as lacking in substance - whether fair and just for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Jones & Anor v Ekermawi [2009] NSWCA 388 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Hamed v Director General, Department of Education [2007] NSWADT 43
Category:	Principal judgment
Parties:	Jin Xiong Lian (Applicant) Sydney Local Health Network (Respondent)
Representation:	J Lian (Applicant in person) Bartier Perry (Respondent)
File Number(s):	111124

REasons for decision

Introduction

1. Mr Lian, a Clinical Nurse Specialist at Concord Repatriation Hospital, complained to the President of the Anti-Discrimination Board that he had been discriminated against by his employer, Sydney Local Health Network. The discrimination was said to be on the grounds of his sex and race (Chinese). The President of the Board declined the complaint as lacking in substance. Mr Lian requested that his complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission or 'leave': Anti-Discrimination Act 1977 (AD Act), s 96. The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Alleged conduct

1. For the purposes of a leave application, the Tribunal can only have regard to the complaint as referred by the President of the Anti-Discrimination Board: AD Act, 95(3). The complaint referred was a complaint of sex and race discrimination during the period from 3 December 2009 to 3 December 2010. It is only conduct that occurred during that period that is the subject of the complaint. No complaint of victimisation under s 50 of the AD Act was referred.

1. The Respondent summarised the Applicant's complaint in the following terms:

In summary the Applicant's complaint is about the Respondent allegedly conducting a prolonged and procedurally unfair investigation and in respect of a failure to acknowledge, promote and support the Applicant.

In the period between 3 December 2009 and 3 December 2010, the Applicant was subject to two investigations:

December 2009: It was alleged that the Applicant:

(a)   authored a journal article that contained false and misleading information

(b)   submitted the journal article without authorisation

(c)   changed patient's ventilator settings without authorisation

(d)   commented on the management of an intensive care patient to a third party, such e-mail being widely distributed

(e)   continued to take photographs in the intensive care unit despite being told on several occasions not to do so (collectively the First Investigation)

September 2010: it was alleged that the Applicant failed to perform his duties and responsibilities as a Clinical Nurse Specialist after a patient fell out of bed. The Applicant had been using a hospital computer, for personal reasons, instead of attending to patients in the intensive care unit (Second Investigation).

The circumstances of both the First and Second Investigation were investigated by the Respondent. The allegations subject of the investigations were found proven.

The Applicant also complains that the Respondent has treated him less favourably in respect of acknowledgement, promotion and support of the Applicant's professional pursuits, having allegedly denied the Applicant such things as a promotion or the opportunity to pursue higher education.

1. Mr Lian agreed that this was a brief outline of the alleged conduct. He also mentioned the failure of the Respondent to give him Family and Community Services (FACS) leave on 2 and 3 May 2010 and in November 2010. Specific mention was also made of the fact that Mr Lian applied for a CNS Grade 2 position in July 2009 received no response. However, that allegation occurred outside the period of the complaint. On the 31 October 2010 he was told no such position was available at the time. He also applied for a continuing education allowance which he says was declined with no reason given.

1. Mr Lian is aggrieved because he says his employer does not recognise his knowledge and skills. In particular he says that he has not been nominated as employee of the month nor has he been offered a scholarship. The Respondent pointed out that employee of the month is nominated by one's peers. In relation to the scholarship the Respondent said that Mr Lian has not applied for a scholarship. Mr Lian said it was his understanding that the nursing unit manager would apply on behalf of an employee and in view of his outstanding performance he had expected that she would make such an application.

Submissions

1. Mr Lian put forward twelve reasons that the Tribunal should grant leave. They are reproduced below with the omission of any reference to complaints of victimisation.

1). . . some key documents and factual evidence that can substantiate this complaint is in the Respondent's possession. These can only be obtained by seeking a summons from the ADT.

2) There is a serious question of credibility. . .

3) There is misleading and deceptive conduct.

4) This case clearly demonstrates hospital resources have been underutilised for patient care, teaching, research and academic publications. Granting leave is in the public interest.

5) Because the respondent repeatedly refused to release some vital documents that can substantiate the complaints of discrimination . . the applicant is entitled to have the issue found in his favour at the ADT unless the respondent introduces sufficient evidence to support the opposite.

6) Discrimination . . .and mismanagement often occur, concurrently. It is difficult to weigh each component. Because of the complexity of this case a full hearing of the ADT will be appropriate and necessary.

7) Based on the materials provided by the Applicant and in view of the past history, inadequate evidence as deemed by the ADB does not derogate the substance of his complaint of discrimination . .

8) If this complaint of discrimination is circumstantial, the evidence taken as a whole or taking all the circumstances into account it is reasonable to conclude the applicant has been discriminated due to his race and sex.

9) . . .

10)

11) In view of ongoing discrimination under utilising health care resources and the public interest, granting leave it is fair and just.

12) There were numerous errors in processing this complaint by the ADB.

1. Grounds three, four, eleven and twelve identify issues which would not arise if the complaint went ahead. The overarching issue that the Tribunal would have to determine is whether Mr Lian had discharged his onus of proving that the Respondent had breached the AD Act. Whether the Respondent wasted resources or acted in a misleading or deceptive manner would not be relevant. Neither would it be relevant for the Tribunal to consider whether the President of the Anti-Discrimination Board had made errors when investigating the complaint. The second ground (serious questions of credibility) is relevant when considering an application for summary dismissal. For the purpose of these proceedings, I have accepted what Mr Lian puts forward in terms of the chronology, but not in relation to his interpretation of events. I agree with Mr Lian in relation to ground seven, that the view of the President of the Anti-Discrimination Board does not bind the Tribunal.

1. The grounds raised by Mr Lian which are potentially relevant to the question of whether leave should be granted, are the first, fifth and sixth grounds. In summary those grounds are that his complaint has merit and that he needs to obtain documents which are in the possession of the Respondent in order to establish the merit of his complaint.

1. The Respondent says leave should not be granted because Mr Lian has had ample opportunity to demonstrate the basis on which he alleges race and sex discrimination but still cannot point to any circumstances that would justify such a conclusion being drawn. Secondly the Applicant, while represented by the NSW Nurses Association, conciliated his dispute with the Respondent on the 31 January 2011.

1. I will deal with these issues under the following headings:

(a)   merits of the case

(b)   opportunity to summons documents or obtain further evidence

(c)   previous efforts to resolve the dispute.

Merits

Legislative provisions

1. If permission is given for the matter to proceed to a hearing, Mr Lian would have to prove his case on the balance of probabilities. His case is that the Respondent has breached s 8(2) and/or s 25(2) of the AD Act. Section 8(2) provides 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,

(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.

1. Section 25(2) is expressed in similar terms in relation to the ground of sex.

1. What it means to "discriminate against an employee on the ground of race" is set out in s 7:

(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.

1. Section 7(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the conduct must be the person's race even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 7(1)(c) defines what is known as 'indirect' discrimination. My understanding of this complaint is that Mr Lian is complaining of 'direct' discrimination.

1. Direct sex discrimination is defined in s 24(1)(a) in similar terms to the definition of race discrimination in s 7(1)(a).

1. There is no dispute that Mr Lian, as a male, can complain of sex discrimination. Similarly, he has a 'race' as defined in s 4. To prove that his employer has discriminated against him on the ground of race or sex, Mr Lian would have to prove, on the balance of probabilities, that:

1. the alleged conduct relates to the terms or conditions of his employment or constitutes a detriment;

2. by engaging in the alleged conduct, the Respondent treated him less favourably than it treats or would have treated another employee not of his race or sex in circumstances which are the same or not materially different: (differential treatment);

3. the alleged conduct was on the ground of Mr Lian's race or sex: (causation).

Terms and conditions of employment/detriment

1. For the most part, the Respondent did not dispute that the alleged conduct relates to the terms and conditions of Mr Lian's employment and/or that it constitutes a detriment.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of his race or sex in the same or similar circumstances.

1. In relation to each of the investigations, Mr Lian says that the "charges" were superficial and that other people who have acted in a similar way have not been disciplined. He says that some serious incidents have occurred while nurses have been reading books or magazines or engaged in personal activities on the computer. While he does not know whether any action has been taken against these employees, he would be surprised if any action has been taken against them. He bases that view on his observations that these people continue to read and/or engage in personal activities on a computer during work time. Mr Lian says that he does not want to identify any comparator by name because he fears reprisals.

1. On the basis of the evidence as it stands, Mr Lian would not be able to prove the differential treatment element of direct discrimination, even if a hypothetical comparator were used. A Tribunal would be unable to draw an inference that a hypothetical woman, and/or a hypothetical person who was not Chinese, would have been treated more favourably in the same or similar circumstances.

Causation

1. The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way he was treated must be his race or sex: AD Act, s 4A. There is no need to prove that a respondent intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge, means that it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case.

1. As was said in Hamed v Director General, Department of Education [2007] NSWADT 43 at [26],

It is not sufficient for [an Applicant] to establish that he was treated unfairly and that he is a person of a different [race or sex] from other [employees of the respondent]. It is necessary for the Applicant to establish that he was treated unfairly because of his [race or sex].

Direct evidence of racial discrimination is rare. There is none in this case. It is quite acceptable however, to reach a conclusion that a respondent has engaged in discrimination on the ground of race by drawing that inference from other facts found by the Tribunal. We have concluded that there is no evidence in this case which would permit us to conclude that race was a factor . . .

1. Similarly, in this case, apart from Mr Lian's perception that he has been treated unfairly, there is no evidence of discrimination. Nor is there any basis on which an inference of discrimination could be drawn from other facts.

Opportunity to summons documents or obtain further evidence

1. The most relevant submission that Mr Lian made was that leave should be granted to give him the opportunity to summons documents relating to how other employees had been treated. If Mr Lian were able to identify a female and/or a non-Chinese person where the situation was the same or not materially different from his situation, his submission may have been persuasive. He was not able to point to any other employee who had behaved in the same, or a similar way, to the way he had behaved, much less a female, non-Chinese employee. While he alleged that others read personal material while on duty, and that there have been mishaps, those vague assertions are insufficient to give rise to a conclusion that their personnel files or other documents have any apparent relevance to the issues. Mr Lian would be embarking on a 'fishing expedition'.

Previous efforts to resolve the dispute

1. The parties attended a conciliation conference on 31 January 2011. Mr Lian was represented by the NSW Nurses' Association. The agreed outcomes following that meeting were summarised in a letter from the Respondent to Mr Lian dated 1 February 2011 (Pages 405 and 406 of the President's Report). The agreement related to the First and Second Investigations, receipt of Continuing Education Allowance, FACS leave, non-recognition and support (including concerns about the omission of an article written by Mr Lian from a list of articles in "Nursing and Midwifery Achievements 2008-2009" published by the SSWAHS in May 2010) and the lack of transfer and promotion opportunities.

1. Mr Lian acknowledges that he reached an agreement about these issues with the Respondent on the day but says that he was "forced' to accept the agreement. While he agrees with some of the outcomes reached, he does not agree with all of them. In addition, he says that the Respondent has breached the agreement. The Respondent denies that it has breached the agreement and says that Mr Lian has disavowed the agreement. (See page 865 and following of President's report.)

Conclusion

1. Mr Lian is aggrieved by numerous incidents and circumstances arising from his employment and from activities outside his employment. His grievance has continued over many years despite genuine attempts by the Respondent to resolve the issues. Over 12 months ago, Mr Lian reached an agreement with the Respondent about the subject matter of his complaint. He has since disavowed that agreement. While that is unfortunate, it is not a matter that I have taken into account in deciding to refuse leave.

1. It is rare for there to be direct evidence of discrimination on the ground of race or sex and none was provided in this case. Nor is there evidence which would allow a Tribunal to draw an inference, based on the nature of the Respondent's response to Mr Lian's conduct for example, that race or sex was a reason for that response. Without evidence that a female and/or a non-Chinese employee was treated more favourably in the same circumstances or in circumstances that are not materially different, the complaint lacks substance.

1. After listening to Mr Lian and reading the material, I am not satisfied that it would be fair and just for the complaint to proceed.

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Decision last updated: 05 April 2012