Molala v City of Sydney Council

[2021] NSWCATAD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Molala v City of Sydney Council [2021] NSWCATAD 27

Hearing dates:

13 January 2021

Date of orders:

11 February 2021

Decision date:

11 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

1. Leave to proceed under s 96(1) of the Anti-Discrimination Act 1977 is refused.

Catchwords:

HUMAN RIGHTS – discrimination – grounds – racial discrimination

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Matshepo Molala (Applicant)
City of Sydney Council (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Bartier Perry (Respondent)

File Number(s):

2020/00341570

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Ms Molala, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with her complaint under s 96 of the Anti-Discrimination Act 1977 (ADA). On 3 July 2020 the President of the Anti-Discrimination Board of NSW received a complaint under the ADA from Ms Molala against the respondent, the City of Sydney which is her employer. The applicant alleged that she was discriminated against on the basis of her race. Ms Molala identified her race as Black African.

2. The President declined the complaint as lacking in substance under s 92 of the ADA. Ms Molala requested that the complaint be referred to this Tribunal under s 93A of the ADA.

Legislation and principles governing the grant of leave

3. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the Act).

4. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)    the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b)   the rights of the complainant under sections 93A and 96.”

5. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so ( s93A).

6. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

7. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

The nature of the complaint and response

8. Section 7 of the ADA provides:

“7 What constitutes discrimination on the ground of race

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

(a)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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 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.

(2)   For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.”

9. Ms Molala said her complaint was brought under s 8(2). Section 8 provides:

“8 Discrimination against applicants and employees

(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, or

(c)   in the terms on which the employer offers employment.

(2)   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.

(3)   Subsections (1) and (2) do not apply to employment for the purposes of a private household.”

10. Ms Molala said she is the only Black employee in the Resource Recovery Division within the Council. She claimed that she was treated less favourably on the grounds of her race in the following three main ways:

1. The Resource Recovery Manager attempted to exclude her from convening the recruitment of her direct reports in December 2018. She said the previous person in her role was able to do this and they were a white male. She alleges that the Resource Recovery Manager pressured her to agree to the appointment of an unqualified applicant who was personally known to her.

2. She was treated less favourably than fixed term contract employees of white background. In October 2019 those employees were offered permanent employment and told they could write their own position descriptions. In January 2020 she was told 75% of her duties would be reassigned and she had to undergo job evaluation to determine the rate of pay. She was given no justification for the change. She was told about changes to her role in public where other white employees were told their roles would not be extended in private.

3. In early December 2019 the managers coerced an employee who reported directly to Ms Molala into writing a grievance against her. It was escalated on account of her race and had not acted on Ms Molala’s own complaint of insubordination. It was claimed that the employee was afraid of her, which validated prejudice against her on the ground of her race. Subsequently that employee was removed from her management and was managed by a white employee. This meant she had less supervisory functions than her white colleagues.

4. Her complaint of racial discrimination was disregarded and dealt with by persons of white background.

11. The respondent denies any discrimination and says that the complaint lacks substance. All actions taken were based on operational needs or other rational grounds and no causal link has been established between her race and the alleged conduct. The explanations for the conduct appear to have varied over time and the matter has a long history so what follows here is a summary only.

12. With regard to point (1) the respondent said that she was not chosen to convene the recruitment because of anticipated changes to reporting lines within her Division. She was appointed to the selection panel, however, so she did participate in the recruitment. The respondent reviewed the outcome after Ms Molala raised claims of prejudice by the convenor.

13. With regard to point (2) the respondent said that the changes to her role followed a restructure in which she was given greater strategic and policy accountability. Ultimately the restructure was placed on hold for six months so that no change was effected. Ms Molala was told about the changes in a location at the Town Hall which was convenient at the time and there was no evidence that the seating area location was chosen because of her race. Although the area was technically open to the public the conversation took place in private.

14. The respondent said that the incident in point (3) arose when an employee being managed by Ms Molala reported that she was being bullied. Two managers met with the employee and asked her to put her complaint in writing so it could be handled in line with Council procedure. They did not encourage or coerce her to make a complaint. Mediation was attempted but this was unsuccessful. The 2020 pandemic had affected staffing recruitment and working conditions which impacted Ms Molala’s role.

15. The respondent said that Ms Molala’s complaint was reviewed by a member of the HR team with no previous dealings with any of the parties to the complaint. Interviews were conducted with relevant persons including Ms Molala and she was allowed a support person. The complaint was found to be unfounded.

Consideration

16. The applicant’s complaint is of direct discrimination – that is she was treated less favourably by the respondent than it treated or would have treated someone not of her race in the same or not materially different circumstances, on the ground of her race.

17. Ms Molala has not identified any evidence which supports her contention that she was treated differently on the ground of her race, except that she is the only person of her race in the division and that the incidents did not happen to people who were white.

18. The question to be asked in this case when addressing the causation element of direct discrimination is whether the person’s race is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. (Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20)

19. The applicant’s evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in her complaint of racial discrimination (Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).

20. The obstacle Ms Molala faces is that she was unable to identify any factors which demonstrated that her race was the real, genuine or true reason for the actions of the respondent, apart from the fact that the persons making these decisions were white and she was the only Black person in the division. There were no alleged facts which connected the incidents to her race, and in each case the respondent has another reason for the alleged conduct.

21. As there is no direct evidence of causation on the ground of race, a causal link between her race and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

22. Ms Molala asks the Tribunal to infer that her race was the reason for the actions taken by the respondent because she is the only person of her race in the division and people who were not of her race were not treated the same way. She said she felt marginalised in the workplace and believed that if she had been white none of the above events would have happened.

23. Where someone is the only person of a particular race in a workplace, and people of that race have been and are still subjected to prejudice and discrimination by other races, it is understandable that instances of detrimental or unreasonable treatment may be interpreted as being based on unlawful discrimination.

24. The ADA requires more than this for discrimination to be established, however.

25. There is an absence of any facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the alleged conduct was committed because of Ms Molala’s race. The respondent has put forward detailed explanations in each case which give other reasons for the conduct. In my view, it is not probable that Ms Molala can establish a causative connection between the conduct of the respondent and her race. For that reason, the complaint lacks substance.

26. In those circumstances it would not be fair and just to grant leave to proceed.

Order

27. 1. Leave to proceed under s 96(1) of the Anti-Discrimination Act 1977 is refused.

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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: 11 February 2021