Mahmoud v Sydney Trains

[2015] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mahmoud v Sydney Trains [2015] NSWCATAD 185
Hearing dates:	14 July 2015
Date of orders:	07 September 2015
Decision date:	07 September 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Leave is refused for the complaint of race discrimination to proceed.
Catchwords:	PRACTICE AND PROCEDURE – leave sought for complaint declined under the Anti-Discrimination Act 1977 to proceed – whether fair and just for leave to be granted-
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Category:	Procedural and other rulings
Parties:	Tawfek Mahmoud (Applicant) Sydney Trains (Respondent)
Representation:	Solicitors: Applicant (in person) Legal Services Division, Sydney Trains (Respondent)
File Number(s):	1510263

reasons for decision

Introduction

1. Mr Mahmoud, who is of Egyptian ethnic background, complains that Sydney Trains has breached the Anti-Discrimination Act 1977 (NSW) on the ground of his race. On 30 August 2014 Mr Mahmoud applied for a position as Assistant Engineer which was advertised on the Sydney Trains website. He complains that:

1. no-one on the interview panel requested the original documents he was asked to bring to the interview;

2. he was not offered the job;

3. despite requesting feedback as to why he did not get the job, no-one responded until he lodged a complaint of discrimination; and

4. although he attempted to appeal against the decision not to give him the job, no-one responded to his request for information.

2. Mr Mahmoud also mentioned age discrimination in his written submissions to the Tribunal. He acknowledged that he had not complained of age discrimination to the President of the Anti-Discrimination Board and that the President had not referred such a complaint to the Tribunal. In those circumstances the Tribunal does not have jurisdiction to determine whether to grant leave in relation to a complaint of age discrimination.

3. The President of the Anti-Discrimination Board declined the complaints of race discrimination on the basis that they were lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or ‘leave’ for the complaint to go ahead: Anti-Discrimination Act, s 96. I have refused leave in this case because the complaint lacks substance and it is not fair and just for it to proceed.

Principles for granting leave – whether “fair and just”

4. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

1. emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

2. found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

3. concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

5. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed.

The alleged conduct

No request to see the original documents

6. In an email to applicants who had been invited to attend an interview, Sydney Trains requested that candidates bring:

1. a form of photo identification;

2. proof of eligibility to work in Australia; and

3. evidence of qualification, e.g. certified copies of originals, for the convenor to sight and copy.

7. Mr Mahmoud brought those documents to the interview and told Ms Ayoub, the independent consultant from Hays Recruitment, that he had them with him. After the interview, Mr Mahmoud telephoned Mr Hope who told him to send the documents by email. He complied with that request. According to Sydney Trains the selection panel would check original documents if there was some doubt about their authenticity but it is not obliged to do so.

8. When I asked what detriment he had suffered as a result of not being asked to show his original documents to the panel, Mr Mahmoud said that he had suffered pain, depression and frustration.

Not offered the job

9. The job for which Mr Mahmoud applied was Assistant Engineer – Training & Documentation within the Control Systems Delivery Unit of the Maintenance Directorate. Altogether 104 applications were received and 92 were submitted to the selection panel for review. There was a three person selection panel including an independent consultant from Hays Recruitment. Mr Mahmoud was one of 15 applicants who were selected for interview. Two withdrew.

10. Mr Mahmoud was rated fourth last in the interview rankings. He was advised in writing that his application had been unsuccessful.

11. Mr Mahmoud said that he was better qualified than the successful candidate but he does not know if he was better qualified than the other candidates because he does not have access to their applications. His has an undergraduate degree in Electrical Engineering and a Masters in Electrical Engineering. The successful candidate was said to have a Degree in Electrical Engineering.

Feedback delayed and very general

12. On 24 November 2014, the same day that he was told his application was unsuccessful, Mr Mahmoud emailed Sydney Trains and asked them to provide him with feedback including the reason he was not successful. Sydney Trains did not respond and he emailed again on 1 December 2014 and followed up with a phone call.

13. On 8 December 2014 Mr Mahmoud lodged a complaint with the Anti-Discrimination Board. On 12 January 2015 Mr Mahmoud received an email from the convenor of the panel stating that Mr Mahmoud’s answers “did not provide relevant examples for the role.”

14. Sydney Trains’ policy on Recruitment Selection and Appointment states, under the heading “post selection feedback” that:

Unsuccessful applicants upon request will be provided with post Selection Feedback.

15. The policy goes on to describe the nature of that feedback but emphasises that it cannot change any aspect of the selection decision and is provided so that unsuccessful applicants can consider whether they need to acquire additional skills or experience.

16. Sydney Trains acknowledges that they did not respond to Mr Mahmoud’s request for feedback quickly and has apologised for its failure to contact him promptly.

No information about appeal rights

17. Mr Mahmoud said that he “sent my appeal” to the convenor on 12 January 2015 including a request to escalate his issue to the “hierarchical escalation panel” at Sydney Trains. He had not received any reply until Sydney Trains responded to his complaint of discrimination.

Relevant legislation

18. If leave were granted for the complaint of race discrimination to proceed, the legal burden of proof would be on Mr Mahmoud to prove his case on the balance of probabilities. Mr Mahmoud would have to establish that Sydney Trains has breached s 8(1)(a) or (b) of the Anti-Discrimination Act:

(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment

19. Mr Mahmoud accepted that there could be no breach of s 8(2) because he has never been an employee of Sydney Trains.

20. I understand Mr Mahmoud’s complaint to be one of direct discrimination as defined in s 7(1)(a):

(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 ...

21. In order to substantiate a complaint of direct race discrimination Mr Mahmoud would have to prove that:

1. he is of a member of a race as defined in s 4;

2. Sydney Trains made certain arrangements for determining who should be offered employment and/or offered employment to someone one other than Mr Mahmoud;

3. those arrangements and that offer of employment amounted to less favourable treatment than Sydney Trains did or would have afforded to a person of a different race in the same or similar circumstances; (differential treatment) and

4. at least one of the reasons for those arrangements or that treatment was Mr Mahmoud’s race: (causation).

Race

22. "Race" is defined in s 4 of the Anti-Discrimination Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Mr Mahmoud said that he is an “Egyptian citizen, Australian permanent resident, Muslim and from Arabic background.” His race includes both that he is of Egyptian national origin and that he is from an Arabic ethnic background.

23. Although Mr Mahmoud left blank the non-compulsory question on cultural background and linguistic diversity in the application form, there is no dispute that Sydney Trains knew that Mr Mahmoud was from Egypt and from an Arabic background.

Arrangements for determining who should be offered employment and determining who should be offered employment

24. The failure to sight his documents could be regarded as part of the arrangements the employer made for the purpose of determining who should be offered employment: Anti-Discrimination Act, s 8(1)(a). The fact that Mr Mahmoud was not offered the job is a determination about who should be offered employment within s 8(1)(b).

25. The complaints about lack of feedback and failing to provide information about appeal rights do not come within s 8(1) of the Anti-Discrimination Act. Those matters do not relate to the arrangements the employer makes for the purpose of determining who should be offered employment. Rather, they relate to Sydney Trains’ policies and processes following a candidates’ unsuccessful application for employment. A complaint based on those allegations cannot succeed because they are not covered by s 8(1) and it would not be fair or just to grant leave for that part of the complaint to continue.

Differential treatment and causation

26. The first component of the test for direct race discrimination is the "differential treatment" test. The treatment afforded to Mr Mahmoud must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In this case, that person would be the successful candidate although his race is not known.

27. To constitute discrimination, at least one of the reasons for the conduct must have been his race: Anti-Discrimination Act, s 4A. There is no need to prove that anyone intended to discriminate.

28. As with the vast majority of complaints of discrimination, a causal link between Mr Mahmoud’s race and the treatment he was afforded would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“...

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

29. The selection panel did not sight Mr Mahmoud’s documents despite the fact that Sydney Trains’ policy suggests that the convenor would sight and copy those documents. There is no basis for inferring that the decision not to sight Mr Mahmoud’s documents at the interview was because of his race. There was no dispute about the authenticity of his qualifications. This part of Mr Mahmoud’s complaint lacks substance and it would not be fair or just for it to proceed.

30. Mr Mahmoud was successful in obtaining an interview and was ranked highly in a large field of applicants. Sydney Trains provided detailed evidence of a rigorous merit selection process in which candidates were ranked by a three member panel including an independent person. Even if his qualifications were superior to those of the successful candidate, that does not give rise to an inference that his race was a factor that the panel took into account. Candidates were ranked not only on the basis of their formal qualifications but on the basis of their performance at interview. The way in which Mr Mahmoud was ranked based on his qualifications and performance at interview provides a much more plausible explanation for not being offered the job than his race. In my view if this matter were to proceed to a hearing Mr Mahmoud would not be able to prove that his race was a reason he was not offered the job.

31. This part of Mr Mahmoud’s complaint lacks substance and it would not be fair or just for it to proceed.

Orders

Leave is refused for the complaint of race discrimination to proceed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 September 2015