Mojaeva v Mission Australia

[2011] NSWADT 103

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Mojaeva v Mission Australia [2011] NSWADT 103
Hearing dates:	10 May 2011
Decision date:	13 May 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave for the applicant's complaint to proceed is refused.
Catchwords:	LEAVE - whether fair and just to grant leave for declined complaint to proceed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Jones and Anor v Ekermawi [2009] NSWCA 388
Category:	Separate question
Parties:	Olga Mojaeva (Applicant) Mission Australia (Respondent)
Representation:	Olga Mojaeva (Applicant in Person) Judith Trembath (Solicitor for Respondent)
File Number(s):	111028

REasons for decision

Introduction

1. Ms Mojaeva is a 59 year old woman of Russian national origin who has various disabilities. She receives a Disability Support Pension from the Commonwealth Government but is still looking for work. Her Job Services Provider was the Centrelink office at Bankstown but she says that she h ad to walk more than an hour to get there. She wanted to transfer her Job Services Provider to Mission Australia because their Punchbowl office was more accessible than Centrelink's office in Bankstown. Mission Australia refused her application. She complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race, age and disability in the provision of services.

1. The President of the Anti-Discrimination Board declined Ms Mojaeva's complaints as lacking in substance. Ms Mojaeva has applied to the Tribunal for permission for her complaints to proceed: Anti-Discrimination Act 1977 (AD Act) , s 96. The Tribunal has a discretion to grant or refuse leave for the complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance.

1. In order to assess whether the complaints should proceed I need to examine both the factual and legal basis for the complaints and come to a conclusion as to the merits of the case.

Legal test

1. If these complaints were to proceed to hearing Ms Mojaeva would have to prove that Mission Australia has breached s 19, s 49ZYN(1) and/or s 49M of the AD Act. those provisions make discrimination on the grounds of race, age and disability unlawful in relation to the provision of services. Discrimination is defined in similar terms for each of these provisions in s 7 (race), s 49B (disability) and s 49ZYA (age). The first part of the definitions refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Ms Mojaeva i s complaining of 'direct' discrimination.

1. In order to substantiate a complaint of direct race, age or disability discrimination in the provision of services Ms Mojaeva would have to prove that:

(1) she has a 'race' or a 'disability' as defined in the AD Act , and/or she is of a particular age or age group;

(2) Mission Australia refused to provide her with a service or provided her with a service on unfavourable terms;

(3) in refusing that service or in providing it on unfavourable terms, Mission Australia treated her less favourably than it treated or would have treated a person who was of a different age or age group, who had a different race or who did not have her disability, i n the same or similar circumstances; ( differential treatment ) and

(4) at least one of the reasons for that treatment was Ms Mojaeva's race, age or disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A ( causation ).

1. For the purposes of these proceedings Mission Australia did not deny that Ms Mojaeva has a 'race' or a 'disability' or that she is of a particular age or age group. Nor did Mission Australia deny that it had refused Ms Mojaeva's transfer a pplication or that that refusal constituted the refusal of a service. The only issue in dispute was whether Mission Australia's decision constituted 'differential treatment' and, if so, whether that differential treatment was on the ground of Ms Mojaeva's race, age or disability.

Evidence

1. On Thursday, 18 February 2010 Ms Mojaeva attended Mission Australia's Punchbowl office and spoke to Jacob Haklany, a team leader. Ms Mojaeva's v ersion of events is that after completing the transfer form Mr Haklany told Ms Mojaeva that he would fax that form to her existing Job Services P rovider and get back to her. The following Monday, 22 February 2010, Ms Mojaeva returned to the Punchbowl office to inquire as to the progress of her application. Ms Mojaeva 's version of events is that the receptionist could not locate the fax that Mr Haklany said he was going to send and after consulting with Mr Haklany the receptionist told her that they had 'no vacancy'. Ms Mojaeva says that she was outraged by this response and that she went to the door of Mr Haklany's office and said words to the effect of, "You have no vacancy. You had it on Thursday." S he admits that she said this in a raised voice but maintains that she never lost control.

1. Mission Australia's version is that Mr Haklany told Ms Mojaeva on 22 February that she would be notified if the transfer was approved. Ms Mojaeva then shouted a ngrily to Mr Haklany, "You're a criminal, you're a criminal!" There were several clients and staff who heard this outburst. Ms Mojaeva then left the office abruptly. According to Mission Australia the decision not to proceed with the t ransfer was made because of Ms Mojaeva's behaviour and the effect of her behaviour on staff and clients. Ms Mojaeva denies that there were other clients or staff members in the area at the time.

Differential treatment and causation

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Ms Mojaeva must be compared with the treatment that would have been afforded to a person not of her race, of a different age or age group and without Ms Mojaeva's disability in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to Ms Mojaeva, a decision maker would have to rely on a hypothetical person in a comparable situation. In addition, at least one of the reasons for being treated in the way she was treated must be her race, age or disability.

1. Ms Mojaeva admits that she does not know why Mission Australia refused to proceed with her application but she believes that her race, age or disability was one of the reasons. She says that a high proportion of the jobseekers attending the Punchbowl office are young people of Arabic background. She also speculates that Mission Australia may not h ave wished to provide her with services because they were unlikely to be able to identify a position for her.

Conclusion

1. Mission Australia has identified a plausible reason for refusing to proceed with Ms Mojaeva's application. If that explanation is accepted as genuine it has nothing to do with Ms Mojaeva's race, age or disability. The same decision would have been made in relation to a hypothetical person without Ms Mojaeva's characteristics who behaved in the same way.

1. In my view if this matter were to proceed to hearing, it is highly likely that the Tribunal would accept Mission Australia's explanation for its decision to refuse Ms Mojaeva's application for transfer. That is the case for several reasons. Firstly, Ms Mojaeva admits that she was o utraged and that she raised her voice. Secondly, Mission Australia's explanation is consistent with the fact that Mr Haklany was co-operative when Ms Mojaeva v isited on I8 February 2010 when there was no incident involving raised voices. Finally, the race or age of either the clients or the staff is much more likely to be reflective of the demographic composition of the population in that area rather than discriminatory treatment.

1. Ms Mojaeva maintains that refusing her application for transfer was not a 'decent way' for Mission Australia to have acted. Even if a Tribunal accepted that submission, the AD Act does not provide a remedy for lack of decency or unfairness. Given that the complaint lacks merit, it is fair and just for leave to be refused.

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Decision last updated: 13 May 2011