Paramasivam v University of New South Wales

[2002] NSWADT 202

CITATION:	Paramasivam v University of New South Wales [2002] NSWADT 202
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gaja Lakshmi Paramasivam RESPONDENT University of New South Wales
FILE NUMBER:	021036
HEARING DATES:	19/07/02
SUBMISSIONS CLOSED:	07/19/2002
DATE OF DECISION:	10/16/2002
BEFORE:	Bartley R - Judicial Member; Alt M - Member; McDonald O - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Police v Orr [2001] NSWADTAP 16 Dutt v Central Coast Area Health Service [2002] NSWADT 133
REPRESENTATION:	APPLICANT In person RESPONDENT J Oakley, barrister
ORDERS:	1. Each complaint dismissed

1 On 9 and 17 November 1999, 18 April 2000 and 25 August 2000 Gaja Paramasivam (the Complainant) lodged complaints with the Anti-Discrimination Board that the University of New South Wales (the Respondent) had discriminated against her on the basis of her sex and race in regard to her employment at the University. Ms Paramasivam is of Sri Lankan background.

2 On 23rd October 2001 the President of the Board advised the Complainant he had declined her complaints under section 90(1) of the Anti-Discrimination Act 1977 as they were lacking in substance.

3 On 25 October 2001 the Complainant requested that the President refer the matter to the Equal Opportunity Division of the Administrative Decisions Tribunal under section 91(2) of the Act, which he did on 2 April 2002.

4 Following a Case conference at the Tribunal the Respondent advised it was intending to make an application for the dismissal of the Complaints under section 111 of the Act.

5 The Respondent then made this application for dismissal of the Complaints pursuant to section 111 of the Anti-Discrimination Act l977.

6 At a further case conference it became evident there was a substantial amount of written material generated by the Complainant and it was agreed by the parties that the application be determined on the following material (1) The Report of the President of the Ant-Discrimination Board to the Tribunal (2) The document headed ‘Points of Claim’ (3) The document headed ‘Respondent’s Points of Defence’ and (4) The document headed ‘ Response to Respondent Points of Defence’ submitted by the Complainant.

7 Ms Oakley of Counsel represented the Respondent and the Complainant appeared in Person.

8 Counsel for the Respondent accepted that the Respondent carried the onus of proof in this application.

9 Counsel told the Tribunal that the Respondent did not intend to rely on the President’s report for evidentiary material (except material that had originated from the Complainant) and the only documents, not originated by the Complainant, to be looked at, were two documents concerning job descriptions.

10 The Complainant told the Tribunal, in response to the Respondents Points of Defence, that all her allegations are based on unlawful discrimination on the basis of race, not as she alleged to the Anti-Discrimination Board, sex and race.

11 The Tribunal has dealt with the Respondent’s application on this basis.

12 Before commencing the hearing of the matter the Tribunal satisfied itself that the Complainant understood the procedure and principles to be adopted in determining the Respondent’s application.

13 The complainant’s allegations are set out in her Points of Claim as follows:

Allegation 1 – The UNSW Administrators’ failure to employ her in the Postgraduate Drug Development Unit

Allegation 2 - Failure to win the position of Postgraduate Officer, Faculty of Commerce

Allegation 3 - The termination of contract services by Managers within the Faculty of Medicine

Allegation 4- Failure to win the position of Staff Development Consultant, Central Services.

Allegation 5 – Failure to win the position of Director of Operations, Faculty of Medicine

14 The Respondents submissions were as follows:

Allegation 1

a) In this allegation the Complainant did not lodge a complaint within the meaning of section 87 of the Act in respect of the matters referred to in the allegation.

b) Further, the Complainant did not provide, to the President any particulars of the allegations she now makes to the Tribunal in her points of claim. The material the Complainant did supply to the President blamed her failure to obtain continued employment on a conspiracy to keep her out because she challenged wrong practices’. The ‘wrong practices’ referred to were the fiscal and management practices of the University.

c) The Complainant was of the view that her failure to obtain employment was because of her campaign as a ‘whistle blower’. There was no belief that race or sex had any bearing in that regard.

d) The Respondent further submitted that by the final paragraph under ‘Allegation 1’ it is apparent that there was no vacant position in the Drug Development Unit in any event. The final paragraph of the Points of Claim stated ‘ But the advertisement was withdrawn and the incumbent was influenced with higher money to stay on the position – even though she had not demonstrated the skills for the higher pay’.

2

a) That in this allegation the Complainant did not lodge a Complaint within the meaning of section 87 of the Act in respect of the matters referred to in the allegation.

b) That the Complainant in her Points of Claim alleged that the Respondent failed to employ her in the position of Postgraduate Officer, Faculty of Commerce but that she made no allegation of any breach of the Act in that regard.

c) In addition that the Complainant in fact withdrew her application for this position.

d) Further that the application in any event did not address all of the essential criteria required for the position and her application was both critical of the recruitment process and included disparaging remarks about the accounting system of the University.

a) That in this allegation the Complainant did not lodge a complaint within the meaning of section 87 of the Act in respect of matters referred to in the allegation. The Complainant alleged that her contract services were terminated by managers within the Faculty of Medicine. No allegation was made of a breach of the provisions of the Act in that regard.

b) That the complainant appeared to attribute the basis of the alleged termination to her challenge of the request of the University for her to cease sending emails and the damaging effect of her emails on the image of the Vice Chancellor. The President expressly declined to deal with the matters that are asserted in this allegation that occurred before 17 May 1999.

a) That in this allegation the complainant asserted that she failed to win the position of Staff Development Officer, Consultant, Central Services. Her complaint in that regard was made on 22 March 2000 but no allegation of breach of the Act in this regard is made by the points of claim.

b) That the advertisement for the position, selection criteria and the complainant’s application appear in the President’s report.

c) That it was readily apparent that the complainant did not meet the essential educational and personal criteria for the position.

d) That this application also contains material that is critical of the University

a) That this allegation concerns the complainant’s failure to obtain the position of Director of Operations in the Faculty of Medicine.

No allegation of breach of the Act is made in respect of this allegation by the points of claim or by the original complaint.

b) That the complainant instead appeared to assert the reason she was not interviewed for this position was because of matters referred to in allegations, 1 & 3, which do not include race or sex but instead aver resentment by the University of her ‘education’ campaign.

c) That it was clear from the complainant’s application that she did not meet the selection criteria for the position. It pointed out she was again critical of the University and indicated an intention to continue being so.

a) That the allegations the complainant purported to make were vexatious as it is apparent the complainant did not have a genuine belief that the decisions made by the University were on the ground of race.

b) That the allegations the Complainant purported to make are lacking in substance because the reasons for the University’s decisions are readily apparent, manifest and have been acknowledged by he Complainant. They do not include either sex or race.

c) That the Tribunal is able to deal with an application under section 111 (Commissioner of Police v Orr [2001] NSWADTAP 16 at this stage as it is appropriate that it do so.

15 The Complainant’s submissions were as follows:

Allegation 1

a) That her first letter of 8th November, which had attachments and were therefore part of the complaint, provided the complaints for allegations 1, 2 & 3.

b) That in early 1999 Professor Lumbers (also) requested approval from the Dean of Medicine to employ the Complainant’s services but the Dean remained silent because he was under pressure from Central Services, in particular Mr Chris Lidbury the Director of Business and Finance who felt threatened by the Complainant and tried to get rid of the Complainant.

I understand Professor Lumbers denied approval to employ my services because of her above experiences. I heard also that at that time Mr Jeff Stewart a consultant within the Dean’s unit – had said that the University was taking legal action against the Complainant. All this would have strongly contributed to the denial of approval.

c) That Professor Richard Thomas desperately wanted to employ the complainant’s services when his administration Assistant resigned. Professor Thomas was making arrangements to advertise the position- and I would have easily won the position on merit basis. But this advertisement was withdrawn and the incumbent was influenced with higher money to stay in the position- even though she had not demonstrated the skills for higher pay.

d) That Mr Pulpick would not have referred the matter to the Tribunal if it had not been in accord with the Act. Also by responding to this complaint in her letter dated 23 April 2001, addressed to Ms Bickovsky of the Anti-Discrimination Board, Ms Kirby has already accepted the complaint under the Act.

e) That all her allegations are based on unlawful discrimination on the basis of race.

f) That there was a position vacant in the Postgraduate Drug Development Unit (see Response to Points of Defence by Complainant).

16 In respect of this allegation, the Complainant’s failure to win the position of Postgraduate Officer, Faculty of Commerce the Complainant submitted:

a) that the advertisement for the position was wrongly worded as being within the Faculty of Medicine. She applied for the position but when she found out it was for the Faculty of Commerce she discontinued her application, as it was not the job she thought it was.

Notwithstanding that, she said the recruiting panel did process her application and they sent her a letter of regret saying she was not found suitable for the position. She says had she been assessed on a merit basis she would have been successful.

17 In respect of the submission that the complaint was not acceptable under the Act the Complainant submitted:

b) That Mr Pulpick would not have sent her complaint to the Administrative Decisions Tribunal if it had not been in accord with the Act.

c) It was also submitted that Ms Kirby by responding to the complaint in her letter dated 23 April 2001 addressed to Ms Bickovsky of the Anti-Discrimination Board had already accepted the complaint under the Act.

a) That after resigning from her permanent position as Senior Management Accountant assigned to the Faculty of Medicine because she could not bear the persecution and harassment by Mr Lidbury and his delegate Mr Kerry O’Reilly the Complainant applied for the position of office Manager, within the Dean’s Unit of the faculty of Medicine. But Mr Derek Wright, who was aiming to be the Chief Administrative Executive after Mr Jeff Warnock left, saw her as a threat and worked to keep her out….

b) The complainant submitted that Mr Wright saw her as a threat to himself and she therefore failed to get the position even though records would prove that she was far better than the successful applicant. She said that Professor Pettigrew who investigated the complaint covered up with reasons such as my weak understanding of EEO policies, as the reason for my failure to get the job. The other reason he gave was ‘lack of focus’.

c) Further that this allegation was in accordance with the Act for the reasons set out in allegations 1 and 2.

a) That the Complainant’s application for the position of Staff Development Consultant, Central Services, highlighted the Complainant’s discoveries of the needs of UNSW staff and outlined the problems and provided solutions.

b) That the application naturally involved critical analyses of the personalities involved through her direct experience, which would have been the best qualification for the job- if the selection had been on merit. The Complainant was not called for an interview.

c) That when the Complainant asked Mr Bateman how the complainant had been ranked compared to the successful applicant –he said it was not ‘University Policy to reveal such details.

d) That the Complainant then asked him to provide the complainant with the relevant Policy- but he failed to do so.

e) That the Complainant then wrote to him that he was abusing his power to uphold the Cultural Practice as Policy.

f) That later the complainant requested the basis of the selection be revealed by Ms Robyn Alexander and Mr Jeff Bateman (who were involved in the interview process). She did not receive a reply from either of them.

g) That the complaint was in accordance with section 87 of the Act.

18 In respect of this allegation the Complainant says she was working on temporary assignment with another organisation when the position was advertised. The Complainant stated the staff of the UNSW Sports Medicine Programs rang her and said that she would suit that position and they forwarded details to her. She said she applied, highlighting the problems she had identified and indicating the solutions. She stated for the reasons she had outlined in allegations 1 and 3 she did not get called for an interview. She said Mr Derek Wright won the position and having worked with him she knew his management skills were weak and on merit he could not stand anywhere near her. She said as at 31 May 2002 she provided advice to the medical Faculty staff at all levels and was making a far stronger contribution than Mr Derek Wright about whose current work staff does not seem to know. She concluded that ‘That is the ultimate proof selection was not on merit- but on cultural pulls and fears’.

Finally the Complainant submitted

a) The Complainant further submitted that she did not know what section 111 says but that Ms Kirby wants to apply for dismissal without following due management process proves that Ms Kirby is not interested in the University but wants to kill the issue as quickly as possible.

b) That those who selfishly use legal expertise for a living do not care whom they hurt in the process. UNSW operations staff desperately needs my services. Many of them risked their reputations and popularity in trying to employ/retain the complainant’s services.

c) That the high quality and standard of the complainant’s services have already been established directly with all staff concerned including Senior Administrators of the UNSW and the Ministry for Education.

d) That if Ms Kirby wants to use her legal expertise to prove all these people wrong- then she degrades herself and her profession.

e) That the legal system exists to uphold the Truth and not lies.

19 Section 111 of the Act provides that:

Where at any stage of an Inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

20 The principles in determining applications of this kind are set out in various cases but it is generally considered it is appropriate to take the complainant’s evidence at its highest point; accept what the complainant has put in evidence and then determine whether or not the complainant could possibly succeed in her complaint. In this instance the Tribunal adopts these principles.

21 The essence of the problem in this case is encapsulated in the following exchange between the Tribunal and the complainant:

Q. I think seeing that your complaint is one of race, you really need to tell us of the incidents where your race was in contention.
A. That what I’m saying see…
Q. But you haven’t mentioned…
A. That’s what I’m saying how would you- if I were to say I was persecuted because I was- I can’t say whether it is because I’m a woman or because of race. I mean, how would you know in any case?
Q. Well, that is your task because you’re the complainant.
A. No, but that is why the EEO- I will read out what I have written about the EEO because the problem is…the EEO policies, they encompass all the anti-discrimination laws. You cannot provide proof as to- how would you prove the intent? How would you prove why Mr Lidbury did not take on board what I said? It could be because I’m a woman, it could be because I’m a migrant woman, it could be because I’m young or an old woman. It could be any of those so I can only say what happened and by applying the EEO policies and verifying whether it was on merit or not is how you can decide whether the anti-discrimination laws have been breached.
Q. But you do have to supply the connection.
A. That’s what I am doing. That is what I am saying, this is what I did and my expressions of knowledge were not heard. But if you’re asking me to take a photograph of their mind I can’t do that.
Q. You’re really saying because people didn’t agree with you that it must have been because of your race. A. Yes, because of my position.
Q. But could it be just be that people are of another opinion?
A. Yes, but then how would you ever prove anti-discrimination?

22 In Dutt v Central Coast Area Health Service [2002] NSWADT 133 the Tribunal considered this matter. The Tribunal stated at para 66

If and when less favourable treatment is established, an applicant must show a causal link between that treatment and their race. If there is no direct evidence then an applicant must rely on inference.

23 The Tribunal further stated at para 70 that there must be a ‘causal link’.

24 The Tribunal then referred to the difficulty in obtaining evidence and said at para 71:

When relying on inference an applicant must identify the evidence on which the inference can reasonably be based. A particular difficulty is that the respondent invariably controls the information necessary to the applicant’s case.

25 The Tribunal continued at para 82:

When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination.

26 The remarks of the Tribunal in Dutt’s case apply to the circumstances in these proceedings:

Allegation 1

27 In respect to allegation 1, the Complainant directed our attention to the first letter of 8th November, which had attachments and was therefore part of the complaint and which she submitted provided the Complaints for each of the first three allegations.

28 As indicated to the Complainant during her address this Tribunal looked at all the relevant papers and was unable to discern any contravention of the Act or Regulations that is alleged to have been committed by any person.

29 The conclusion formed by the Complainant that simply because she received no reply from the persons to whom she wrote a letter meant that they had discriminated against her on the basis of her race is untenable.

30 The Tribunal accepts the submission of Ms Oakley in regard to allegation 1. We also accept her submission that the complainant did not lodge a complaint within the meaning of section 87 of the Anti-Discrimination Act 1977 in that there was no complaint in writing of any alleged contravention of the Act by a person.

31 In addition, of course it appears that the position was never actually vacant as the incumbent holder, accepted a higher pay and stayed in the position. Accordingly this allegation of unlawful discrimination on the basis of race is lacking in substance.

Allegation 2

32 This matter concerned the failure of the Complainant to win the position of Postgraduate officer, Faculty of Commerce. It appears that the advertisement for the position was wrongly worded as being within the Faculty of Medicine. The complainant applied for the position but when she found out it was for the Faculty of Commerce she discontinued her application. Notwithstanding that the Complainant said she was sent a letter of regret saying she was not suitable for the position.

33 The Tribunal finds it difficult to understand why this matter was ever raised by the Complainant. The application was discontinued by the Complainant. It is clear she was not discriminated against on the basis of race. Nor did she suffer any detriment. In addition the submission of Ms Oakley is accepted that the Complainant did not lodge a complaint within the meaning of section 87 of the Anti-Discrimination Act 1977.

34 The complaint is lacking in substance and is in fact bordering on being vexatious.

Allegation 3

35 This allegation concerned the termination of the Complainant’s contract services by Managers within the Faculty of Medicine.

36 The President of the Anti-discrimination Board did not allow some of the factual matters as they were out of time.

37 In respect of the remaining matters raised, the Complainant states that certain services she was supplying to a Dr Garlick were terminated.

38 She states the basis of the termination was that ‘Ms Kirby was upset with me for challenging her “legal notice” regarding my e-mail correspondence which was damaging Professor Pettigrew’s image with the staff I was copying e-mails to’.

39 The Complainant has not connected the termination of services she was supplying by any evidence, direct or indirect from which an inference could be drawn that the services were terminated on the grounds of race.

40 Ms Oakley’s submission that the complaint in this matter is not a complaint within the meaning of section 87 of the Anti-Discrimination Act 1977 is accepted. In addition the complaint is lacking in substance.

Allegation 4

41 The Complainant applied for the position of Staff Development Consultant, Central Services in which the Complainant said the application highlighted the Complainant’s discoveries of the needs of UNSW and outlined the problems and provided solutions.

42 She was not called for an interview. She later requested the basis of the selection be revealed from Ms Robyn Alexander and Mr Jeff Bateman who apparently were involved in the interview process. She did not receive a reply from either of them.

43 In her complaint to the Anti-Discrimination Board she said:

Since I have not received a reply from either, I have concluded that they agree with me that they have discriminated against me on the basis of my race. I am sure if such were not they would have responded with objective substantiation of their selection which ought to be readily available.

44 There are many reasons why people do not reply to letters and an inference such as the complainant has drawn in this matter, from a failure to reply to her letter does not show any nexus with a contravention provided for by the Anti-Discrimination Act l977.

45 The complaint is lacking in substance.

Allegation 5

46 This allegation concerns the Complainant’s failure to win the position of Director or Operations, Faculty of Medicine.

47 The parties have competing positions but essentially it comes down to the fact that the documents we are using do not show that the Respondent has in anyway breached the Act. Taken at their highest in favour of the complainant there is no nexus shown between the facts and the complaint that would indicate a breach of the Act.

48 It was submitted by the respondent that there was no allegation of a breach of the Act made in respect of this allegation by the Complainant in the Points of claim. Nor was there in the original complaint.

49 This complaint is lacking in substance.

50 The general submissions of the complainant do not take the matter any further other than showing a bias against Ms Kirby, the instructing solicitor in this matter.

51 From the outset it was made clear that in an application under section 111 the onus rests on the respondent to show that the ground (in this case, lacking in substance) on which the application is made is made out.

52 There is no onus on the Complainant to convince the Tribunal to the contrary. The Complainant did not at any stage carry any onus. From time to time the Complainant was asked to ‘direct us to the aspects of her case which showed a connection with a breach of the Act’, ‘or that had a clear connection between the conduct complained of’ and the issue of discrimination on the grounds of race.

53 At all times the emphasis of the Inquiry was on finding the connection between the factual issues comprising the complaints and contraventions (if any) of the Act, especially in regard to ‘race’ discrimination.

54 The Complainant has generally based the complaints on her belief based on EEO Policies, that she was discriminated against on the grounds of race. As indicated in Dutt’s case, belief is not sufficient to ground complaints under the Anti-Discrimination Act.

55 For the reasons set out generally above each allegation is lacking in substance and each complaint is DISMISSED.

Order

1. Each complaint is dismissed.