Meka v Shell Company Australia Ltd
[2005] FMCA 250
•1 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEKA v SHELL COMPANY AUSTRALIA LTD | [2005] FMCA 250 |
| HUMAN RIGHTS – Racial discrimination – refusal of employment – errors made in the consideration of employment application – whether the consideration of the application was influenced by the applicant’s race. EVIDENCE – The Court cannot draw adverse inferences inconsistent with credible evidence which is unchallenged. |
| Anti Discrimination Act 1992 (NT) Federal Magistrates Court Rules 2001(Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Racial Discrimination Act 1975 (Cth), ss.9, 15 |
| Australian Medical Council v Human Rights and Equal Opportunity Commission & Ors (1986) EOC 92-838 State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287 |
| Applicant: | CHUKWUMA MEKA |
| Respondent: | SHELL COMPANY AUSTRALIA LTD |
| File Number: | SYG860 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 7 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Asuzu |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG860 of 2004
| CHUKWUMA MEKA |
Applicant
And
| SHELL COMPANY AUSTRALIA LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Chukwuma Meka is a tertiary educated engineer who, in June 2003, enquired about employment with the Shell Company in Australia. He applied online on 26 June 2003 and had a series of e-mail exchanges between then and 1 July 2003 with a Shell employee, Ms Vicki Kazinoti, about his application. Ms Kazinoti made a number of errors in dealing with his application and ultimately told Mr Meka that there were no positions available. In fact, Mr Meka was not eligible for the vacancies he was applying for as they were only available for graduates with no more than three years working experience. Mr Meka formed the view that his employment application was not considered (or not properly considered) by Shell because of his race and on 22 July 2003 he complained to the Human Rights and Equal Opportunity Commission (HREOC). That application was terminated by a delegate of the President on 10 March 2004 on the basis that the delegate was satisfied that the complaint was lacking in substance.
Mr Meka applied in this Court on 23 March 2004, pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”).
The application has been amended several times since. An attempt by Shell to have the application dismissed summarily was unsuccessful. The most recent iteration of the application is that filed on 28 January 2005. That further amended application was apparently not served on Shell but Shell had sufficient notice of its terms by receipt of written submissions prepared by Mr Meka’s counsel, Mr Asuzu. I permitted the further amended application to be itself amended at the trial of this matter on 7 March 2005 by adding a reference to s.15 of the Racial Discrimination Act 1975 (Cth) (“the RDA”). In the further amended application Mr Meka asserts that Shell unlawfully discriminated against him contrary to ss.9 and 15 of the RDA. He seeks relief in the form of a declaration, damages and costs.
The further amended application provides the following particulars:
a)Mr Meka was not given the same opportunity as other job seekers in considering his enjoyment of a right to employment services including benefits associated with employment. In particular, Shell deleted the applicant’s resume/CV, before it could be determined whether he would be successful. This was prompted by the fact that the applicant had foreign credentials and was done on the basis that the applicant was not residing in Australia as a permanent resident.
b)Shell caused Mr Meka to suffer detriment, due to being subjected to negative effects of his permanent residency status in his application for employment service. Mr Meka says that he was subjected to humiliation and hurt to his feelings when an advantage available to other job seekers was denied to him. He asserts that the sole purpose of the actions of Shell was to discriminate against him because he was perceived to be of “foreign stock”, through evidence of his race, nationality and ethnic origin, which was apparent from his deleted resume/CV.
c)Shell excluded Mr Meka from employment consideration due to his race, foreign nationality and ethnic origin and Shell took no action to consider or process his employment application. Mr Meka invites the Court to draw an inference that race had a causally operative effect upon Shell’s action to exclude him from further consideration on his employment application.
d)Shell made assumptions and guesses about Mr Meka, assuming that he could not work in Australia. Mr Meka asserts that his application was not considered because the process was infected by a discriminatory approach adopted by the Shell human resources decision maker involved in the selection process.
e)Mr Meka asserts that Shell operated an unstated but prevailing discriminatory employment practice. He asserts that mistakes admitted by Shell in the processing of his application camouflage a discriminatory policy not to employ Nigerians. He asserts that his nationality and ethnic origin were obvious from his resume and CV.
f)In the alternative, Mr Meka asserts that Shell’s employment selection procedure, practices and policies involve elements of “systemic” and “institutional” discrimination and/or racism. Mr Meka asserts that Shell imposed indirectly upon him a “requirement or condition” that he make his employment application overseas when he was present in Australia which, although fair and neutral in form, operated to restrict him from applying due to Shell’s perception of his race.
g)Further, Mr Meka asserts that Shell imposed a condition which he could not comply with and which was unreasonable and which impacted adversely upon him. He asserts that s.9(1A) of the RDA prohibits employment discrimination against his ethnic group as a matter of practical reality.
The evidence
Mr Meka relies upon his affidavits filed on 23 March 2004, 31 May 2004 and 7 February 2005. The first affidavit is formal and was filed in apparent compliance with the Federal Magistrates Court Rules 2001 (Cth). The third affidavit merely annexes a complete copy of the electronic documents relevant to consideration of the application before the Court. The second affidavit contains Mr Meka’s factual allegations.
The respondent relies upon the affidavits of Lisa Paevere filed on 8 April 2004 and the affidavit of Vicki Kazinoti filed on 29 October 2004, as well as exhibit R1, which is correspondence between HREOC and Shell.
None of the deponents were required for cross-examination.
The legislation
Section 9 of the RDA provides as follows:
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a)a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b)the other person does not or cannot comply with the term, condition or requirement; and
(c)the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
(2)A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3)This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4)The succeeding provisions of this Part do not limit the generality of this section.
Section 15 of the RDA provides as follows:
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a)to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b)to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c)to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2)It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
(3)It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
(4)This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(5)Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling-house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.
Submissions
Mr Asuzu prepared two sets of written submissions and also made oral submissions. Ms Eastman, for Shell, also prepared written submissions and made oral submissions. Mr Asuzu submits that the manner in which Shell dealt with Mr Meka’s employment application constitutes either or both direct racial discrimination contrary to ss.9(1) and 15(1)(a) or (b) or 15(2) of the RDA or indirect racial discrimination contrary to s.9(1A) of the RDA and the same provisions of s.15 of the RDA. He submits that Mr Meka was directly discriminated against by reason of his race or national or ethnic origin by being refused employment, or, alternatively, by being subject to a discriminatory process of consideration of his employment application. Further, or in the alternative, Mr Asuzu submits that Mr Meka was subjected to an unreasonable and discriminatory condition to which he could not comply, namely that he submit his application for employment to an overseas office of Shell even though he was resident in Australia.
Ms Eastman complains that the scope of Mr Meka’s claims remained unclear until the trial of this matter. She drew attention to the unsatisfactory procedural history of the proceedings. The application has been amended several times and needed to be further amended on the day of the trial in order to properly reflect the applicant’s intention. Mr Meka’s last affidavit was also filed late.
Ms Eastman submits that Mr Meka’s claim must fail because the respondent’s evidence on what occurred was unchallenged and must be accepted. She submits that the Court cannot draw any adverse inferences against the respondent in the absence of cross-examination of its witnesses. Mr Asuzu belatedly sought, in his oral submissions in reply, to reconsider his decision not to require the applicant’s witnesses for cross-examination but by then it was too late.
Ms Eastman draws attention to the fact that Mr Meka was ineligible for the position he applied for because he had more than three years work experience following his graduation. She submits that the only requirement to which Mr Meka was subjected by Shell in the consideration of his employment application was a requirement that he both be eligible to work in Australia and actually live in Australia. He satisfied both of those conditions. She submits that a residence requirement has no connection to race, colour, nationality or ethnic origin. Ms Eastman submits that although three mistakes were made in the processing of Mr Meka’s job application these were simple administrative errors and do not reflect a discriminatory employment policy.
Ms Eastman sought to be heard on costs regardless of the outcome of the application.
Reasoning
In these proceedings Mr Meka contends that he was discriminated against on the basis of his race, colour, nationality or ethnic origin. He is a black African from Nigeria. The claim is a claim of both direct and indirect discrimination. In order to succeed in the claim of direct discrimination Mr Meka must prove that Shell:
a)did an act involving a distinction, exclusion, restriction or preference;
b)which was based upon his race, colour, descent or national or ethnic origin; and
c)the distinction, exclusion, restriction or preference had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a human right.
Shell accepts, for the purposes of s.9(1) of the RDA that the relevant “human right” is found in Article 5(e)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in the Schedule to the RDA which provides:
The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration.
I accept Ms Eastman’s submission that the effect of Article 1(2) of CERD means that CERD does not apply to distinctions made between citizens and non citizens and accordingly, the scope of the RDA is also limited[1]. Article 1(2) of CERD states:
This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State party to this Convention between citizens and non citizens.
[1] Australian Medical Council v Human Rights and Equal Opportunity Commission & Ors (1986) EOC 92-838, Ellen Bogen v Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-564 and Stamatov v Department of Defence [1998] HREOCA 6 (9 February 1998)
The RDA covers race, colour, descent or national or ethnic origin but does not include residency status which appears to be part of Mr Meka’s claim[2].
[2] cf Anti Discrimination Act 1992 (NT) which includes immigrant status in the definition of “race”
I also accept Ms Eastman’s submission that, for the purpose of s.9(1) of the RDA, a distinction, exclusion, restriction or preference will only be unlawful if it was based on the person’s race, colour, descent or national or ethnic origin. The term “based on” was considered in the Macedonian Teachers Association case where Weinberg J held that the term “based on” means “by reference to”[3].
[3] Macedonian Teachers Association v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 and confirmed on appeal in State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287
The undisputed evidence of both parties clearly establishes the following facts:
·Mr Meka registered his interest in applying for a general graduate position with Shell. He received an e-mail on 26 June 2003 providing him with a registration number and password. Later on the same day he received a further e-mail advising that his application had been received;
·On 30 June 2003, Shell e-mailed Mr Meka advising that unless he already had the right to work in Australia and was currently residing in Australia, it could not consider his application and advised of addresses to apply with other Shell recruitment offices;
·On 30 June 2003 Mr Meka sent an e-mail to Ms Kazinoti of Shell advising that he had permanent residency but he did not indicate that he was currently residing in Australia;
·On 1 July 2003, Ms Kazinoti sent an e-mail to Mr Meka advising that he must be currently residing in Australia, New Zealand or the Pacific Islands for his application to be considered;
·On 1 July 2003, Mr Meka e-mailed Ms Kazinoti stating that he was currently residing in Sydney at 14/30 Kings Road, Ingleburn, New South Wales, 2565. He noted that there may have been some mistake;
·On 1 July 2003, Ms Kazinoti e-mailed Mr Meka and sincerely apologised that she did not realise from his original application that he was resident in Australia. She went on to advise that Shell did not have a suitable position available at that time. She indicated that Shell would be happy to consider any further application for a specific position.
I accept Ms Eastman’s submission that the following further factual findings are open to me on the evidence:
·Shell’s recruitment is conducted through two programs which operate independently of each other. They are Experienced Hire/Ad Hoc and Graduate Recruitment.
·For all applications for employment with Shell in Australia, Shell imposes a residency criterion that an applicant has the right to work in Australia and is residing in Australia, New Zealand or the Pacific Islands at the time the application is made.
·Ms Kazinoti explained that “Experienced Hire” and ad hoc application involves recruitment for job vacancies determined in accordance with the business needs of Shell. She said that applications are usually in response to an advertisement and are received through a dedicated e-mail address. She noted that at all times the e-mail address receives a large volume of queries relating to position availability. When there are no positions available, she responded to each applicant advising them of the situation and recommended they regularly look in the newspaper or the Shell website for future vacancies.
·When e-mails are received from applicants who do not have the right to work in Australia and are not residing in Australia, New Zealand or the Pacific Islands, her practice is to reply to them regardless of whether there are any positions available or not and advised the applicant that the residency criterion has not been met. She provides e-mail addresses to which further applications should be directed. She said that all applicants receive the same reply regardless of the location from which the application is received. Once that reply has been sent, she deletes the e-mail application.
·Ms Kazinoti explained that “Graduate Recruitment” is for recent university graduates. It is conducted once at the beginning of each year, and if required, a second time later in the year.
·To qualify for a graduate position, in addition to meeting the residency criterion, Shell requires an applicant to have a maximum of three years work experience and have completed their degree no more than five years prior to applying for the position.
·Ms Kazinoti explained that applications for Graduate Recruitment are received through an online system known as NGA.
·In 2003 two Graduate Recruitment programs were run by Shell. Applications for the first program closed on 27 April 2003 and applications for the second program closed in September 2003.
·Ms Kazinoti's evidence is, that in order to apply in the Graduate Program, an applicant is required to enter into the NGA system through the Shell website and create an account for themselves. Once an account has been established, each applicant is then able to create an application to be submitted to Shell. When an applicant creates an account, the NGA system automatically generates an e-mail response, signed off by Ms Kazinoti, which is sent to the applicant advising of their registration number and the due date for their applications. The registration number is used in all correspondence by Shell to easily locate and access the applicants' details.
·In relation to the 2003 program, Ms Kazinoti explained that the system had not been updated after the completion of the first Graduate Recruitment Program and therefore applicants applying in the second Graduate Recruitment Program were incorrectly advised upon registration that their applications were due on 27 April 2003 where it should have been September 2003.
·When an application is submitted, a second standard e-mail response is generated and sent to the applicant acknowledging that the application has been successfully submitted and setting out the selection process which will be undertaken. Within 5 days of Shell receiving an application, the application is screened to determine if the applicant is a suitable candidate for the available position.
·The screening process involves sorting the applications received into categories (known as buckets). There are four buckets into which applications can be placed:
(a) candidate for interview;
(b) more than 3 years experience;
(c) overseas applicant (does not meet residency criterion);
(d) decline.
·The applications placed in (b) and (c) are not eligible for graduate recruitment but their applications remain on the NGA system. Mr Meka’s application remained in the NGA system but Ms Kazinoti was not referred to it in her e-mail correspondence with Mr Meka and therefore Ms Kazinoti incorrectly assumed his application had been deleted in accordance with Shell’s practice.
·In the second graduate recruitment program run in 2003, Shell received 73 applications, of which 29 were placed in (c). No positions for Graduate Recruitment were offered to any of the 73 applicants in the second Graduate Recruitment program of 2003.
·Mr Meka registered his interest in applying for a Graduate Engineering position with Shell in late June 2003. Around that time, Shell had posted an advertisement for Engineering Graduates: see Annexure C to the Kazinoti Affidavit.
·Mr Meka applied online through the NGA system by e-mail. He received an e-mail on 26 June 2003 at 6.04pm providing him with a registration number and password: see Annexure A to the Kazinoti Affidavit.
·Later on 26 June 2003 at 9.20pm, he received a further e-mail advising that his application had been received: see Annexure B to the Kazinoti Affidavit.
·On 30 June 2003 at 4.37pm, Ms Kazinoti e-mailed Mr Meka advising that unless he already had the right to work in Australia and was currently residing in Australia, Shell could not consider his application and advised of addresses to apply with other Shell recruitment offices: see Annexure D to the Kazinoti Affidavit. Ms Kazinoti says that advising the applicant that he did not meet the residency criterion was an error.
·On 30 June 2003 at 9.30pm, Mr Meka sent an e-mail to Ms Kazinoti stating that he had permanent residency but he did not indicate that he was currently residing in Australia: see Annexure E to the Kazinoti Affidavit.
·This e-mail was sent to the Experienced Hire e-mail address. As Ms Kazinoti noted the e-mail did not refer to the ID number and she did not realise it was an application for Graduate employment, she incorrectly assumed that Mr Meka had previously submitted an ad hoc application and had been advised he was not eligible.
·On 1 July 2003 at 3.55pm, Ms Kazinoti sent an e-mail to Mr Meka advising that he must be currently residing in Australia, New Zealand or the Pacific Islands for his application to be considered: see Annexure F to the Kazinoti Affidavit.
·On 1 July 2003 at 4.28pm, Mr Meka e-mailed Ms Kazinoti stating he was currently residing in Sydney at 14/30 Kings Road Ingleburn NSW 2565. He noted that there may have been some mistake: see Annexure G to the Kazinoti Affidavit.
·Ms Kazinoti continued to assume that Mr Meka had made an ad hoc application.
·On 1 July 2003 at 4.52pm, Ms Kazinoti e-mailed Mr Meka. She sincerely apologised that she did not realise from his original application that he was resident in Australia. She went on to advise that Shell did not have a suitable position available at that time. Shell indicated that it was happy to consider any future application for a specific position: see Annexure H to the Kazinoti Affidavit.
·Ms Kazinoti says that had she been aware that Mr Meka had applied for Graduate recruitment, she would have been able to access his application from the NGA system and identify the error. Her evidence also is that, as Mr Meka had worked more than three years since graduation, he would not have met the other requirements for graduate recruitment.
Mr Asuzu invites me to draw inferences from the evidence that Shell applied a discriminatory employment policy based upon Mr Meka’s race, colour, national or ethnic origin. In his mind, Mr Meka formed the view that the manner in which Shell dealt with his employment application and the ultimate refusal of employment meant that he was being treated unfavourably by reason of his race, colour, national or ethnic origin. However, Mr Meka has no direct evidence of such a connection. It is supposition on his part. There is nothing on the face of the respondent’s evidence to establish such a connection. On the contrary, while it would be open to me to conclude from the respondent’s evidence that Mr Meka’s application was carelessly, even incompetently, handled, it does not establish a process of decision making based in any way upon the race, colour, national or ethnic origin of Mr Meka. I declined to dismiss Mr Meka’s application summarily last year, principally on the basis that I thought it might be possible for Mr Asuzu to obtain evidence of a connection necessary to prove Mr Meka’s case by cross-examination of Ms Kazinoti.
Mr Asuzu elected not to cross-examine either of the respondent’s deponents and the consequence is that their evidence is unchallenged. It is simply not open to me to draw the inferences from the evidence that Mr Asuzu invites me to draw. There is no evidence that Ms Kazinoti was aware of Mr Meka’s resume and his overseas qualifications. Her evidence is she did not have Mr Meka’s application and resume before her when she responded to him. She was not cross‑examined and there is no evidence which would support a finding that she was aware of Mr Meka’s overseas qualifications. She was aware of Mr Meka’s name and (on the basis of his e-mail sent at 9.30pm on 30 June 2003) that he was apparently from Nigeria. This apparently led to her making false assumptions about Mr Meka’s right to work in Australia and then his residence. As I have already noted, those false assumptions point to carelessness but not direct racial discrimination.
Further, Mr Meka was not refused employment by reason of his race, colour, national or ethnic origin. Ms Kazinoti, on behalf of Shell, purported to refuse employment on the false basis that there were no jobs available. She did not realise that Mr Meka was applying for the advertised positions for graduates. However, Mr Meka was ineligible for the position he sought because he had more than three years post graduation employment experience. Even if Mr Meka could establish that the process of considering his employment application was discriminatory, he has not suffered any loss. The process did not disadvantage him because he was not eligible for the employment he sought anyway. He was offended and upset by the manner in which his application was considered but Ms Kazinoti promptly and properly acknowledged the errors that she recognised on 1 July 2003, and offered her sincere apology. That apology should have assuaged Mr Meka’s hurt feelings. Even if I was satisfied that discrimination occurred in the consideration of Mr Meka’s employment application (and I am not satisfied) I would elect to take no further action, pursuant to s.46PO(4)(f) of the HREOC Act.
The claim of direct racial discrimination fails.
The claim of indirect racial discrimination also fails for the reasons offered by Ms Eastman in her written submissions.
Section 9(1A) of the RDA does not adopt the same model of indirect discrimination as used in other Commonwealth, State and Territory enactments, so decisions which apply direct formulations of indirect discrimination may not assist the Court in the resolution of a claim under the RDA.
Mr Meka bears the onus of establishing each of the following elements:
a)that Shell required Mr Meka to comply with a term, condition or requirement;
b)Mr Meka did not or could not comply with the term, condition or requirement;
c)the requirement to comply with the term, condition or requirement has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, by Nigerians of a right to work; and
d)the term, condition or requirement was not reasonable.
Each of these elements must be addressed and the evidence must satisfy each element: see Australian Medical Council v Wilson (Siddqui’s Case) (1996) 68 FCR 46.
Mr Asuzu’s submissions at paragraphs 18, 21 and 37 are not a correct statement of the elements of s.9(1A) of the RDA. There is no onus on Shell to establish ‘good reasons’ for the requirement or condition.
Mr Meka contends that the requirement or condition was to ‘lodge overseas’: see paragraph 19 of Mr Asuzu’s written submissions. There is no evidence of such a requirement or condition and at no stage was such a requirement or condition imposed on Mr Meka. He was briefly, and incorrectly, advised by Ms Kazinoti that he was welcome to lodge an application with Shell overseas. The advice was otiose within 24 hours.
A relevant term, requirement or condition, was a requirement that all applicants:
a)have the right to work in Australia; and
b)be residing in Australia, New Zealand or the Pacific Islands when submitting an application.
As Mr Asuzu notes in his submissions (paragraph 9) Mr Meka was able to comply with this requirement. As Mr Meka was able to comply with such a requirement then the claim of indirect discrimination must fail.
The requirement referred to in paragraph 32 above was subject to a further requirement depending upon whether the application was for graduate employment or experienced hire/ad hoc.
With respect to graduate employment, which was the position which Mr Meka applied for, Mr Meka could not comply with a further requirement that he have a maximum of three years work experience and have completed his degree no more than five years prior to applying for the position.
The requirement that graduates have a maximum of three years work experience and complete their degree no more than five years prior to applying for the position, is not a requirement which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, of a right to work by Nigerians. The requirement is neutral in its terms and operation. There is no evidence which could support a factual finding that the requirements on graduate recruits had an adverse impact on Nigerians.
Even if Mr Meka had been seeking employment under experienced hire/ad hoc, it was a requirement that there be a vacant position having regard to the business needs of Shell. As Ms Kazinoti explained in her email of 1 July 2003, there were no suitable positions available at that time. She went on to suggest that he look for advertisements in his “national newspaper” and on the Shell website in the future. I reject Mr Asuzu’s submission that the reference to Mr Meka’s “national newspaper” was a reference to a Nigerian national newspaper. It could only have been a reference to whichever Australian national newspaper Mr Meka chose to read.
Having regard to the elements of indirect discrimination, Mr Meka has failed to establish any unlawful discrimination. This is not a case where the Court has to consider the reasonableness of a condition or requirement because the other elements have not been established.
The application will be dismissed.
In accordance with Ms Eastman’s request, I will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 April 2005
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