Luu v Rail Corporation New South Wales

[2010] NSWADT 112

CITATION:	Luu v Rail Corporation New South Wales [2010] NSWADT 112
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lam Phi Luu RESPONDENT Rail Corporation New South Wales
FILE NUMBER:	101011
HEARING DATES:	13 April 2010
SUBMISSIONS CLOSED:	13 April 2010
DATE OF DECISION:	17 May 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	EQUAL OPPORTUNITY – leave to proceed, complaint declined lacking in substance
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Jones & Anor v Ekermawi [2009] NSWCA 388
REPRESENTATION:	APPLICANT In person RESPONDENT P Ginters, counsel
ORDERS:	Leave is refused for the Applicant’s complaints of race discrimination against the Respondent to be the subject of proceedings before the Tribunal.

REASONS FOR DECISION

Introduction

1 Mr Luu was employed by Rail Corporation New South Wales (RailCorp) as a duty manager. On 17 December 2008, following an investigation and disciplinary process in relation to three complaints against him from members of the public and a fellow employee, RailCorp terminated Mr Luu’s employment. He applied to the Australian Industrial Relations Commission (AIRC) alleging that his termination was harsh, unjust or unreasonable. The proceedings were settled and Mr Luu signed a Deed of Release. He accepted a sum equivalent to 20 weeks wages as full and final settlement for all entitlements arising out of his employment termination. He also released and indemnified RailCorp from any further claims. Mr Luu says that he had no choice but to sign the Deed because the union representative told him that the union would not represent him if the matter went to hearing.

2 Mr Luu subsequently lodged a complaint with the President of the Anti-Discrimination Board alleging that RailCorp had discriminated against him on the ground of his race (Vietnamese) by terminating his employment and by deducting from his termination payment an amount that RailCorp said he owed them. The President of the Board declined his complaints on the basis that they lacked substance. Mr Luu requested that his complaints be referred to the Tribunal. The Tribunal has a discretion to grant or not to grant leave for the complaints to proceed: Anti-Discrimination Act 1977 (AD Act, s 96). That discretion must be exercised in a fair and just manner. The grounds on which the President may decline a complaint, which are listed in s 92(1)(a), are relevant to the exercise of the Tribunal’s discretion under s 96 but are not determinative: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

3 The reasons the President gave for declining the complaint in this case were that Mr Luu had signed a Deed of Release and had not provided sufficient information to substantiate his complaint. In addition, the President of the Board was satisfied that RailCorp had provided a plausible non-discriminatory reason for the decision to terminate his employment.

Termination payment

4 Mr Luu says that Railcorp deducted approximately $6,000 from his termination payment on the basis that he had been overpaid that amount in 1999. Mr Luu has brought proceedings in the Chief Industrial Magistrate’s Court to recover this amount. Those proceedings are set down for hearing in May 2010. As the Chief Industrial Magistrate’s Court is an appropriate forum for the recovery of this amount and those proceedings are already on foot, it is not fair or just for leave to be granted for this part of his complaint to proceed.

Termination

5 Background. The grounds for the termination were that Mr Luu had:

a) subjected a customer to inappropriate and offensive behaviour and failed to carry out his duties in a professional manner;

b) engaged in an altercation with an employee and sworn at them; and

c) subjected a customer to inappropriate and offensive behaviour and failed to act in a professional manner.

6 In order to substantiate his complaint of race discrimination, Mr Luu would have to prove that:

a) the signing of the Deed of Release does not operate as a bar to the proceedings because, for example, it was signed under duress;

b) by terminating his employment RailCorp has treated him less favourably than they treat or would treat a non-Vietnamese person in the same circumstances or in circumstances which are not materially different;

c) one of the real or genuine reasons for that treatment is that Mr Luu is Vietnamese: AD Act , s 8(2)(c) and s 7(1)(a).

7 Deed of Release. The onus would be on Mr Luu to prove that despite having signed the Deed of Release it does not operate as a bar to him bringing these proceedings. He says that he had no alternative but to sign the Deed because the union representative told him that they would not represent him at a hearing if he did not sign it. Without hearing all the evidence as to the circumstances in which the Deed was signed, it is not possible to form a concluded view as to the likelihood that Mr Luu would be successful in having the Deed set aside. Nevertheless, it is relevant that the onus would be on him to prove, as a threshold issue, that the Deed should be set aside.

8 Factual basis for the termination. Mr Luu denies swearing at anyone. Again it would be necessary to examine all the evidence to determine whether he could establish that proposition. However, I note that the complaints which were the reason for his termination were investigated by RailCorp and Mr Luu was given the opportunity at that stage to respond to the allegations. Findings were made in relation to those complaints including that Mr Luu swore at a fellow employee. While not bound by those findings, without fresh evidence corroborating Mr Luu’s version of events, it seems unlikely that the Tribunal would come to a different view. Mr Luu also says that it was unfair for RailCorp to rely on old complaints or complaints where it had been decided that no further action would be taken. It is clear from the letter of termination that only three of the more recent substantiated complaints were relied on to terminate Mr Luu’s employment. His submission that many of the complaints made against him were not substantiated or that no action was taken is irrelevant given that those complaints were not the reason for this termination.

9 Less favourable treatment. Mr Luu did not nominate a non-Vietnamese person who had been treated differently in the same or similar circumstances. It would be necessary for the Tribunal to make the comparison with a hypothetical employee. Mr Luu would have to satisfy the Tribunal that a hypothetical non-Vietnamese employee who was found to have behaved in the way Mr Luu was found to have behaved, would not have been terminated. That finding would have to be informed by asking whether one of the real or genuine reasons for his termination was his race.

10 Causation. Prior to his termination, Mr Luu had a history of complaints in relation to inappropriate conduct. Not all those complaints were substantiated and in many cases no action was taken. However, it is relevant that on 6 October 1999 Mr Luu was dismissed following an incident involving allowing an unauthorised female into a restricted area. Following an appeal to the Transport Appeals Board, that decision was changed to a three month suspension without pay. The history of substantiated complaints against Mr Luu, and the nature of the three complaints which led to his termination, support RailCorp’s contention that there was a plausible, non-discriminatory basis for terminating Mr Luu’s employment. Furthermore, it appears that Mr Luu did not initially regard race as a reason for his termination. He did not rely on that ground in his application to the AIRC nor did he mention race in his initial complaint to the Anti-Discrimination Board. It was not until the Board wrote to him on 25 June 2009 asking him to provide further information that he stated that he had been dismissed because of his race.

11 Conclusion. Even if Mr Luu were able to persuade the Tribunal to set aside the Deed of Release, it is highly unlikely, given the matters to which I have referred, that he would be able to establish that his employment was terminated on the ground of his race. The complaint lacks substance and it is not fair or just to grant leave for it to proceed.

Leave is refused for the Applicant’s complaints of race discrimination against the Respondent to be the subject of proceedings before the Tribunal.