Perera v Commissioner of Corrective Services

[2007] NSWADT 115

CITATION:	Perera v Commissioner of Corrective Services [2007] NSWADT 115
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rex Perera RESPONDENT Commissioner of Corrective Services
FILE NUMBER:	051025
HEARING DATES:	16-18 October 2006
SUBMISSIONS CLOSED:	18 October 2006
DATE OF DECISION:	31 May 2007
BEFORE:	Smyth M - Judicial Member; Schneeweiss J - Non Judicial Member ; Monaghan-Nagle L - Non Judicial Member
CATCHWORDS:	Race Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Evidence Act 1995 Interpretation Act 1987
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Chand v State Rail Authority [2007] NSWADT 90 Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 McDonald v Puplick & Ors (unreported, Matter No 30090/97 [1998] NSWSC 428 (12 June 1998). NSW Teachers Federation v President Anti-Discrimination Board & Anor [2005] NSWADT 153 Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5 Pignat v Richmond Valley Council [2005] NSWADT 162 Sivananthan v Commisioner of Police, NSW Police Service [2001] NSWADT 44 Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 Zhang v Blinds Pty Ltd (decision delivered 17 November 2006)
REPRESENTATION:	APPLICANT G Doherty, barrister RESPONDENT T Anderson, barrister
ORDERS:	1. Application to amend the complaint received by the President of the Anti-Discrimination Board on 21 May 2004 to include victimisation granted.; 2. Application to amend the complaint to include the Respondent’s failure to return the Applicant to his normal duties for the period 19 July 2005 to 20 August 2005 refused.; 3. Complaint of discrimination on the ground of race regarding the 2 January 2004 roster change is substantiated; 4. Complaints of victimisation and other complaints of race discrimination are dismissed.; 5. The Respondent to pay the Applicant the sum of $1000 within 28 days

Introduction

1 The President of the Anti-Discrimination Board [the Board] received a complaint from Mr Perera on 21 May 2004 and a further complaint on 30 July 2004. The Acting President of the Board referred those complaints to this Tribunal on 23 February 2005.

2 Mr Perera is Sri Lankan and has been employed by Corrective Services since 1990. He was appointed as a senior correctional officer in 2001 and moved to the Metropolitan Remand and Reception Centre [MRRC] in 2002. His complaint concerns three incidents.

3 Change of Roster. Mr Perera alleged that he was discriminated against on the grounds of race in employment when his supervisor, Ms Farrell, changed his rostering arrangements on 2 January 2004. On that day Mr Perera was rostered to work in the Central Control Tower [Central Control] of the MRRC. His shift was swapped with another officer Mr Allsop, and Mr Perera was allocated Mr Allsop’s shift in the Goldsmith area of the MRRC. Goldsmith accommodated 256 inmates in four pods of 64.

4 Strip search and television incidents. Mr Perera alleged that he was victimised, and in the alternative discriminated against on the ground of his race, in employment, when Ms Farrell failed to give instructions directly to him on 4 April 2004. He alleged that there were two incidents on that day. We refer to these as the strip search and television incidents respectively.

5 Strip Search. In the first incident Ms Farrell instructed one of Mr Perera’s subordinates to strip search an inmate rather than following the chain of command by giving her instruction to Mr Perera.

6 Television. In the second incident Ms Farrell instructed an officer from another area to move a television from a cell in the pod (a wing of the prison) supervised by Mr Perera to a different pod without informing Mr Perera first.

7 Later in April 2004 Mr Perera requested not to be rostered in an area supervised by Ms Farrell and this request was agreed to. Ms Farrell is now a Senior Assistant Superintendent at the MRRC. At the time of the roster, strip search and television incidents she was the Area Manager for Goldsmith and had responsibility for Central Control.

Preliminary issues

8 Before dealing with the substantive issues it is necessary to deal with some preliminary issues.

Dismissal of complaint lodged on 30 July 2004.

9 In a complaint received by the President of the Board on 30 July 2004 Mr Perera alleged that he was told on 21 July 2004 that he could not work in Central Control until he was proficient in the use of a particular weapon. The decision to remove him from Central Control was reversed the next day. Mr Perera alleged that ‘the prompt decision to take me off Control confirms my belief that attempts will be made to hound me at my work because I complained of racial discrimination’. During the hearing Mr Perera, through his barrister, indicated that he did not wish to pursue this complaint.

10 His complaint of victimisation received at the Board on 30 July 2004 regarding this incident is dismissed under s. 107 (1)(a) of the Anti-Discrimination Act 1977 [the ADA] on the basis he did not wish to proceed with the complaint.

11 In the course of the hearing Mr Perera made two separate amendment applications under s 103 of the ADA.

Power to amend complaints

12 Section 103 of the ADA states

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

13 Section 103 was introduced into the ADA by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 and came into effect on 2 May 2005.

14 Prior to the commencement of s.103 the Tribunal could only deal with the complaint that was referred by the Board President. If additional complaints or new matters were raised that were not within the complaint referred, then the Tribunal could not deal with those complaints or matters unless the Applicant had lodged a complaint with the Board President and it was referred to the Tribunal by the Board President.

15 In addition, prior to the commencement of s.103 a complaint had to be of a contravention that had already happened. It could not include incidents that post dated the complaint. [Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 at [89]; McDonald v Puplick & Ors (unreported, Matter No 30090/97 [1998] NSWSC 428 (12 June 1998).

16 In Chand v State Rail Authority [2007] NSWADT 90 at [15] the Tribunal considered s.103 and determined that under s.103(2) of the ADA the Tribunal’s amendment power was:

‘… limited to additional complaints that can be identified as included in the complaint ‘as investigated by the President.’

17 That Tribunal also referred to the case of Zhang v Blinds Pty Ltd (decision delivered 17 November 2006) where the same limitation was applied [at 15].

18 When interpreting legislation a purposive approach is required: s. 33 Interpretation Act1987. [NSW Teachers Federation v President Anti-Discrimination Board & Anor [2005] NSWADT 153 at 9]. The ADA is remedial legislation and the objects include the promotion of equality of opportunity and rendering unlawful certain kinds of conduct.

19 The ADA was specifically amended to create s.103. The section is drafted in wide terms and s.103(2) includes the words ‘may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President’. The inclusion of this new provision must have some work to do.

20 The word ‘additional’ should be given its ordinary meaning. It is defined in the Australian Oxford Dictionary as meaning ‘added, extra or supplementary’.

21 This Tribunal is not bound by the interpretation of s.103(2) adopted by the Tribunal in Chand and Zhang. While we have considered those decisions we do not consider that there is a requirement that such a complaint can be identified as included in the complaint ‘as investigated by the President.’

22 Section 103 is not restricted in time and is drafted broadly. The words ‘additional complaints and anything else that was not included in the complaint as investigated by the President’ allow for a complaint referred by the Board President to be amended to include extra complaints and matters even if they were not lodged with the Board President, investigated by the Board President or conciliated by the Board President. This Tribunal offers mediation so that where complaints are amended the parties have the opportunity to go to mediation if they both consent.

23 The Tribunal has a wide discretion to amend a complaint referred by the Board President to deal with extra matters that were not investigated by the Board President as part of that complaint.

24 Section 103(2) allows for matters to come before the Tribunal that were not investigated by the President whether those matters are alleged to have occurred before the date of lodgement of the complaint that brings the matter before this Tribunal or afterwards.

First Amendment Application

25 On the first day of the hearing Mr Perera applied to amend his complaint received by the Board on 21 May 2004 to include victimisation. He submitted that the matters contained in his report of 7 April 2004 (an annexure to letter of complaint dated 18 May 2004 that included the strip search and television incidents) constituted victimisation under s. 50 of the ADA. In his complaint to the Board Mr Perera had characterised these incidents as racial discrimination.

26 Mr Perera submitted that the Department had been on notice of the allegations since May 2004, the allegations were unchanged and that his application merely concerned the legal characterisation of the allegations.

27 Mr Perera submitted that s. 103 of the ADA was a wide power that allowed for additional complaints to be included at any stage. The matters he sought to include had been investigated by the President of the Board and were part of the complaint he had made. He submitted that there was no prejudice to the Respondent given that they were on notice of the allegations.

28 While acknowledging that the power in s. 103 was wide ranging the Respondent opposed the application on the basis that it would now be unfair and prejudicial to turn the complaint from one of race discrimination to one of victimisation. The complaint was made two and a half years ago and characterised in that complaint as race discrimination. The first notice of the victimisation complaint was on the first day of the hearing.

29 The Respondent submitted that the questions that arise in defending a complaint of victimisation were different to those of discrimination. They submitted that they had given consideration to victimisation and that they would be subject to prejudice if the application was granted.

30 The Tribunal granted the application. Although the Respondent stated at the time that they did not require reasons we outline brief reasons here.

31 Mr Perera’s letter of complaint, received by the Board on 21 May 2004, referred to the report he wrote to the Operations Manager regarding what he termed ‘discriminatory actions’. He attached a copy of his report dated 6 April 2004.

32 A complaint need not demonstrate a prima facie case [s. 89(2) of the ADA]. While Mr Perera’s did not use the word ‘victimisation’ in his letter of complaint and referred to discriminatory actions, the letter and attachments provide detail about his allegations. In the report he attached to his complaint Mr Perera outlined his allegations regarding the strip search and television incidents. He requested that for his personal safety and the orderly running of the MRRC that he should not to be rostered in an area supervised by Ms Farrell. His complaint and attachments taken as a whole are sufficient to characterise his complaint as one of racial discrimination in employment and one of victimisation. Accordingly it is not necessary to amend the complaint.

33 If we are wrong on that basis then we have determined to amend the complaint as requested by the Applicant. As already outlined s. 103 has a broad ambit and permits amendment at any stage of the proceedings. Although the application to amend the complaint was not made until the first day of the hearing the respondent has been aware of the Applicant’s allegations since they were informed of his complaint by the Anti-Discrimination Board in August 2004.

34 While the Tribunal can take into account the prospects of the complaint being substantiated when deciding whether to amend a complaint under s 103, the Tribunal is not determining the merits of the complaint. In this instance the Applicant’s argument that the conduct amounts to victimisation is not untenable and is a matter for evidence and submissions before this Tribunal in the course of the hearing.

35 Given that the Respondent was aware of the facts as alleged by the Applicant for a long period of time we consider that any prejudice to them is likely to be minimal. Any prejudice to the Respondent can be overcome by granting them leave to file additional evidence or allowing additional time should they consider it necessary.

Second amendment application

36 On the second day of the hearing the Applicant made an application under s. 103 to amend the complaint to include the Respondent’s failure to return the Applicant to his normal duties for the period 19 July 2005 to 20 August 2005. The Applicant contended that this failure was race discrimination, or in the alternative, victimisation.

37 The Applicant referred to his affidavit of 16 December 2005. In that affidavit the Applicant stated that he had attended his doctor on 18 July 2005 and had been suffering from work related depression. He had some time off work and returned to work on 27 July 2005. He stated that his doctor’s certificate said he was fit to resume normal duties with overnight shifts to be avoided.

38 The Applicant alleged that he was not returned to normal duties and was deprived of overtime and penalty rates. He alleged that as a result of not being returned to his normal duties and being limited to the standard wage he lost $830.92 per week in income for that period.

39 While the Applicant acknowledged that he had not complained of these matters to the Board he referred to his affidavit of 16 December 2005 filed in the Tribunal and submitted that the Respondent was on notice regarding these matters. He submitted that the Tribunal had a discretion to include additional complaints, the complaint was important as it grounded special damages and that if any real prejudice was found to the Respondent the matter could be adjourned.

40 The Applicant also submitted that this conduct was ongoing conduct, following on from the first event in 2004. He contended that, as a result of previous discrimination, by July 2005 he was denied duties he would normally work and suffered financial loss as a result. He had suffered adversely as a result of having made a complaint regarding the previous discrimination against him.

41 The Respondent opposed the application and referred to s. 89B(2)(b) of the ADA whereby the President of the Board could decline the whole or part of conduct complained of that occurred more than 12 months before the making of a complaint. The Respondent submitted that the President had this discretion so that respondents would not have to respond to stale complaints. The Respondent submitted that Mr Perera’s affidavit of 16 December 2005 indicated that he had made a workers compensation claim. They further submitted that there was no suggestion in Mr Perera’s affidavit that he was alleging discrimination and victimisation by being placed on restricted duties.

42 As outlined above s.103(2) provides a power to amend a complaint to include additional complaints and anything else that was not included in the complaint investigated by the President. That power enables the Tribunal to amend a complaint to include allegations that post date the complaint to the Board President. The application is to include the time period 19 July to 20 August 2005 and the matters raised in paragraphs 34-36 of the Applicant’s affidavit of 16 December 2005.

43 If the amendment is not permitted the Applicant will not be entitled to any remedy for the alleged racial discrimination, or in the alternative victimisation.

44 It is now over twelve months since the alleged unlawful conduct is said to have taken place. The Respondent made submissions regarding the difficulty in dealing with stale complaints and emphasised that the Board President had a discretion to decline matters that are greater than twelve months old.

45 Although the Applicant submitted that this was ongoing conduct there is a long time gap between the matters included in his complaint to the Board and the conduct he now wants to amend the complaint to include. His application to amend the complaint is made a significant period after that conduct and was not made until the second day of a three day hearing.

46 After taking into account the prejudice to both parties we have determined not to grant the application.

47 At the time the Tribunal informed the Applicant that he may be able to use the evidence set out in his affidavit as evidence that goes to damages in regard to his complaints that are before the Tribunal. That is, provided of course that the complainant is actually able to prove his complaints and to establish a causal link between any damage that has occurred and those acts of discrimination and or victimisation.

Complaints before the Tribunal

Evidence

48 There were three witnesses for the Applicant, Mr Perera, Mr Singh, a senior correctional officer and Ms Dogra, a correctional officer. Each provided written statements and gave oral evidence. These witnesses were all cross examined.

49 The Respondent provided affidavits from Ms Farrell, Senior Assistant Superintendent MRRC, Mr Hickie, retired and formerly Superintendent, Metropolitan Remand Facilities and Special Programmes and Acting Operations Manager of the MRRC, Mr Little, Correctional Officer MRRC, Mr Aboud, the Manager Security, MRRC and Mr Chamberlain, Assistant Superintendent. Ms Farrell, Mr Little and Mr Chamberlain gave oral evidence and were cross examined. The Applicant did not require Mr Hickie or Mr Aboud for cross examination. The Report of the President of the Anti-Discrimination Board was also in evidence.

Complaint 1 Change of Roster

50 On 2 January 2004 Mr Perera’s supervisor Ms Farrell checked the roster and swapped Mr Perera’s shift in Central Control with another officer Mr Allsop, of the same rank. Mr Perera’s roster was changed to Goldsmith, an area that accommodated inmates in the MRRC. Mr Allsop was of Caucasian background, a different race from Mr Perera.

51 Mr Perera said that he asked Ms Farrell whether there was any particular reason for the move and she stated ‘I am not a racist but I cannot understand you’.

52 Mr Perera alleged direct race discrimination in employment in contravention of s. 8(2)(b) and (c). He alleged that he had been denied access to a benefit and, or, subjected to a detriment. He alleged that he had been treated less favourably on the ground of a characteristic that appertained generally to people of the Sri Lankan race, his accent, and another characteristic that he termed being ‘softly spoken, lack of assertiveness’.

53 The test for direct racial discrimination was set out by the Appeal Panel in Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5. In that case the Appeal Panel posed the question:

Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different? [at 44 ]

54 Adopting that test the issue for this Tribunal is did the Respondent, on the ground of race or a characteristic of race, treat Mr Perera less favourably than it treated or would have treated a non Sri Lankan person in the same circumstances or in circumstances which were not materially different?

55 The effect of s. 4A of the ADA is that where an act is done for two or more reasons it is sufficient if one of those reasons consists of unlawful discrimination. It does not matter whether that reason is a dominant or substantial reason.

56 In determining whether Mr Perera has established his case, we have applied the civil standard of proof. In line with well accepted authorities we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. [Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361-362].

Further background and discussion

57 Mr Perera worked under the direct supervision of Ms Farrell from September 2002 until April 2004.

58 Mr Perera’s work in the MRRC was subject to rostering arrangements made by a staff officer in the prison. The roster was usually made up for a four day period. Some of the time Mr Perera was rostered to work in Goldsmith, an area that housed 256 inmates in 4 ‘pods’ each containing 64 inmates. On other occasions Mr Perera was rostered to work in Central Control. Central Control oversees and monitors the jail including the pods that accommodate the inmates. If an alarm is activated officers in Central Control respond and call support to the area that requires it. Various forms of equipment are used including a two way radio to communicate between the Central Control and officers in the jail. Officers working in Central Control have no direct contact with inmates.

59 Ms Farrell supervised Central Control and the Goldsmith accommodation area. We accept Ms Farrell’s evidence that over 100 staff were dependent on Central Control for their safety and well being. Staff in Central Control needed to possess the necessary experience, quick reaction time and the ability to determine and assess any emergency situation.

60 We accept Mr Perera’s evidence that he was rostered to work in Central Control approximately 25% of the time, that he sometimes worked there for two weeks at a stretch and was sometimes called in on overtime to work there. We accept his evidence that he had worked in Central Control since November 2002.

61 Mr Perera preferred working in Central Control. Officers working in Central Control had no contact with inmates and consequently there was no exposure to potential violence from inmates. He also saw it as a prestigious position within the jail. Ms Farrell’s evidence was that there was no difference in prestige between the work in Central Control and Goldsmith. When asked which job would be the easiest she said ‘Central Control’. There was no difference in rank and pay for Mr Perera whether he worked in Central Control or in Goldsmith.

62 For the period of time that Mr Perera worked in Central Control up until 2 January 2004 there was no specific training for working in Central Control other than ‘on the job’ training. On the evidence of both parties there was no system for regularly giving subordinates performance appraisals and no system of one to one meetings to say that performance was lacking.

63 Ms Farrell was his supervisor and she had never raised any issues with him regarding his performance until the incident on 2 January 2004. Ms Farrell agreed in cross examination that she had not brought any deficiencies in Mr Perera’ ability to perform his work properly to his attention before she had submitted her response to his report about the roster change.

64 Both Mr Perera and Ms Farrell agree that they had a conversation on 2 January 2004 shortly after Mr Perera discovered his roster change. Mr Perera says that when he asked Ms Farrell whether there was any particular reason for the move she stated ‘I am not a racist but I cannot understand you’. He said that he responded ‘That’s strange. I have worked for the Department for over 13 years and this is the first time I have been told that my spoken English could not be understood.’

65 Mr Perera made a formal report of the incident to the acting Operations Manager, Mr Hickie, on 2 January 2004. In that report, in evidence before the Tribunal, Mr Perera informed Mr Hickie of the roster change and Ms Farrell’s comment ‘I am not a racist but I cannot understand you’ and his response to her.

66 Mr Perera pointed out the length of time he had worked in Central Control, his 13 years of service with Corrective Services and the four correctional centres he had worked in without any previous complaint about his spoken language. He also referred to his work as a plantation manager in Sri Lanka and Malaysia for 25 years using English. He ended his report by saying ‘I take this action by Mrs Farrell as personal attempt to character assassinate and discriminate me. This action and statement leaves me in doubt about my future prospects in the Department of Corrective Services as Ms Farrell is my immediate superior.’

67 When it was put to Ms Farrell in cross examination that she had said “I am not a racist but I cannot understand you” she replied that that was not the whole extent of the conversation and that she had said a lot of other things. She denied saying those words in that context or saying them ‘like that’. When it was put to her that she had raised the issue of race she said “No I can’t recall that.” She was unable to tell the Tribunal what the whole conversation was and said she could not recall.

68 Before the Tribunal Mr Perera said that he had not put the full conversation that he had with Ms Farrell in his report to the Operations Manager. He said he ‘put the problem that hit me and explained that.’ He said that Ms Farrell had also told him about Mr Chee (a probationary officer) being in Central Control and she had said that having him (Mr Perera) and Mr Chee there was why she had to change the roster.

69 In oral evidence Mr Perera said that he was taken aback by Ms Farrell’s comments, that he had previously worked with Mr Chee and he was upset as he was restricted in the areas he could work in. He felt he had done nothing wrong.

70 Ms Farrell did not recall how often probationary officers worked in Central Control.

71 We found Mr Perera to be a sincere and truthful witness. We accept his evidence that he worked with probationary officers in Central Control. We find that probationary officers were rostered to Central Control, Mr Perera had previously been rostered on with them and that one such officer was Mr Chee.

72 Ms Farrell submitted a response to Mr Perera’s report regarding his removal from the roster by letter shortly after Mr Perera submitted his report.

73 Ms Farrell acknowledged that she had requested that rosters swap Mr Perera with Mr Allsop. She said that Mr Perera was rostered onto to Central Control with a probationary Correctional officer, Mr Chee, who was not trained to work in Central Control. She said that Mr Perera ‘had not completed all aspects in relation to working in this area’. She then referred to the officer that she had substituted for Mr Perera in Central Control, Mr Allsop, and said that he was fully conversant with all procedures pertaining to Central Control and that in her opinion he was the better person to train Mr Chee.

74 She said that Mr Perera had not reported their full conversation in his report. She went on to state:

‘Mr. Perera is softly spoken, sometimes lacking in assertiveness and given his accent, on occasion it is difficult to understand him. In an area so important as Central Control when an immediate response is required, it is vital that ALL staff know what is happening. This is in NO WAY discriminatory or an attack on Mr Perera’s personal character. It is my observation of Mr Perera that he is unable to take control of a situation and will stand back and allow junior officer’s to take charge.’

75 Ms Farrell stated that she was waiting for the Staff Officer to return to duty to express her concerns and see if Mr Perera would benefit from further training. She then referred to two incidents that involved Mr Perera. She stated that one incident ‘resulted in officer’s being injured due to the lengthy delay between an alarm being raised and a response called.’ She referred to another incident that had happened in Central Control involving Mr. Perera. In that incident an inmate had gained access to this area. She described it as ‘fortuitous that the inmate was lost and did not have an ulterior motive to escape or take hostages’. Ms Farrell stated that the fact that the inmate even gained access to such a secure location was a cause for concern given that the Control Tower is an armed post’.

76 Mr Perera acknowledged that he had let an inmate enter the secure area in Tower while he was on duty. He said that an alarm was going at the time and there were two officers coming into Central Control. He pressed the bell and an inmate who was lost came in through the first door. He agreed that he had made a mistake but said that his reaction was timely and he had run down and escorted the inmate out with the other two officers. The Governor had asked him what happened, he provided an explanation and nothing further had happened.

77 In regard to the incident that Ms Farrell claimed ‘resulted in officer’s being injured’, Mr Perera stated in his written response that he had not been notified of the incident or asked for an explanation.

78 Mr Little, a correctional officer, provided an affidavit, dated 19 January 2006, and gave oral evidence regarding this incident. In April 2003 Mr Little was in the visits area of the prison when an inmate punched him in the face and threw a bin at another officer. After he was punched he said that he had pressed the duress alarm but there was no response at the time. He made a written report at the time of the incident but did not make any reference to a lack of response in that report.

79 When cross examined Mr Little conceded that it was a possibility that his alarm had gone off as a “tilt” alarm although later he said that he thought it more likely that he had pressed the duress alarm. He denied that it was possible that when he was punched that he may have gone off the vertical to a tilt and activated the alarm.

80 Ms Farrell said that Mr Little had spoken to her about the incident a matter of days before she changed Mr Perera’s roster on 2 January 2004.

81 In oral evidence Mr Perera recalled the incident. He was on duty at the time in Central Control. His evidence was that there are two types of alarms, a ‘tilt’ and a ‘duress’ alarm. Officers carry an alarm and when they recline or “go down” the alarm is set off. It is called a ‘tilt’ or ‘man down’ alarm. He said that periodically they received many false alarms. When officers reclined the alarm would tilt or get knocked by the officer. In that situation they would check with the area so that they did not call an unnecessary response.

82 When a duress alarm is pressed a different message comes up in the control room and Central Control calls an immediate response so that officers go to the area.

83 Mr Perera stated that on that occasion he had got a ‘man down’ alarm in the visits area. The camera went to visits but did not focus on exactly where and the screens did not show a problem. He rang the area and was told that the problem was over. He then cleared the screens and got back to normal duties.

84 Ms Farrell’s evidence was that there was an instruction that if an officer hits personal duress alarm or wall alarm Central Control must call an immediate response. In cross examination she stated that a response should be called for any alarm. She agreed that the telephone and cameras were used but said it was not the correct way to do it.

85 Mr Perera responded to Ms Farrell’s response by letter of 24 February 2004 to the Operations Manager. He reiterated his length of service. He pointed out that he had been under Ms Farrell’s direct supervision since September 2002 and until he received her response to his report he had not been informed of inadequacies or the necessity to undergo further training. He stated that it was only when he placed the incident on record that Ms Farrell ‘found out about my alleged deficiencies’.

86 He stated that as he was not rostered to a pod on a permanent basis and has often worked in Central Control and that he has worked with officer Chee and other probationary constables in the control area. He said that there was no specific structured training for the post in Central control and a number of officers who had not been trained worked in that area. He referred to examples that demonstrated his ability to respond to critical situations including disarming an inmate attempting to stab another inmate with a knife. He referred to his extensive employment experience in Sri Lanka using English. In addition he stated that he had travelled extensively in Europe, USA, Asia and Australia and had not encountered a situation where he was told that his English was not understood.

87 Mr Chamberlain, an Assistant Superintendent, provided an affidavit of 13 October 2005 and was cross examined. He recounted an incident when there was a fight between prisoners in the yard and he had observed Mr Perera stay inside and leave breaking up the fight to more junior officers. He regarded the incident as a minor one and did not raise it with Mr Perera at the time. He stated that it raised a question in his mind as to how Mr Perera might respond in an emergency and noted that he had not had a further opportunity to observe how he would respond. He said he had not worked with Mr Perera very often. Mr Chamberlain also said that he was aware that Mr Perera was softly spoken and lacking in assertiveness but that he had not experienced any difficulty in understanding him. Mr Chamberlain did not recall whether he had spoken to Ms Farrell about Mr Perera before the incident on 2 January 2004.

88 Management responded to Mr Perera’s report of 2 January 2004 swiftly. Mr Hickie, the acting Operations Manager, made a notation on Mr Perera’s report form saying ‘This must be sorted out a.s.a.p. unless there are specific reports indicating Mr Perera should not be working in central control he should not be removed. Please follow up.’ There is a further signed notation dated 8 January 2004 on Mr Perera’s report that states ‘Mr Perera to return to Central Control as per Governor Hickie’s instructions. Staff officer – please interview Mr Perera & inform him and Denise Farrell’.

89 Mr Perera was not satisfied with that response to his report. He was concerned about Ms Farrell’s written response to his report and wanted an enquiry into his complaint. He then made a further report regarding two incidents that occurred in April 2004 and these are dealt with later in this decision. The respondent organised a meeting between Ms Farrell and Mr Perera to settle Mr Perera’s complaint in April 2004. The matter was not resolved.

90 Mr Perera saw Mr Hickie on 10 May 2004 about his concerns and told him that he wanted a conclusion to the enquiry. Mr Perera said that Mr Hickie told him nothing adverse had been done against him. Mr Perera said he raised his concern about future promotion in the Department and that there was a letter on his file written by Ms Farrell which was not true that had not been withdrawn. It is Mr Perera’s evidence that Mr Hickie offered to write him a letter saying that his work was up to date, that there was nothing wrong with it and that his promotional prospects in future would depend on merit. Mr Perera refused this offer and requested that an enquiry be held into his complaint.

91 Mr Hickie attached a copy of a letter he wrote to Mr Perera on 24 May 2004 to his affidavit of 7 October 2005. The Applicant did not require Mr Hickie for cross examination. In that letter he referred to their conversation on 10 May 2005 and said:

‘As discussed there was nothing racial in Ms Farrell’ actions it was merely a decision with which you disagreed.’

92 He referred to Mr Perera’s concerns about future promotional prospects and said:

‘As you are aware promotion within this Department is based on merit and I can assure you with utmost confidence that your promotional prospects will not be affected in any way whatsoever by this incident’.

93 Mr Singh and Ms Dogra provided affidavits and gave oral evidence at the hearing. The incidents they gave evidence about were not part of Mr Perera’s complaint before the Tribunal. The question for this Tribunal is whether they prove that Ms Farrell had a tendency or propensity to behave in a particular way towards people of a different race to herself. In Pignat v Richmond Valley Council [2005] NSWADT 162 at [26] the Tribunal expressed caution about this kind of evidence stating:

... ‘This kind of evidence should be treated cautiously because it allows a person to be judged by their conduct on other occasions, rather than on direct or indirect evidence of their conduct on the occasion that is the subject of the complaint. Under s 97 of the Evidence Act 1995, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless, among other things, that evidence has significant probative value. This Tribunal is not bound by the rules of evidence, but should nevertheless be careful not to rely on evidence adverse to Council unless its probative value is significant.’

94 Having considered the evidence of Mr Singh and Ms Dogra we do not consider the evidence helpful in determining whether Ms Farrell had a tendency to behave in a particular way towards people of particular races or to victimise people for making allegations against her. The evidence is discussed in more detail below.

Mr Singh’s evidence

95 Mr Singh provided an affidavit and gave evidence at the hearing. He had been asked to act up as a senior correctional officer for a shift on Friday 25 July 2003 in G Block. Ms Farrell asked him would he mind swapping with another officer, Mr Wilson. She wanted the other officer to act up on the basis that he was a regular in the section and the other officers on that particular watch were new to the area. Mr Singh says he agreed to the swap as he did not want to be involved in an argument with Ms Farrell. Mr Singh made a report to the Governor about the incident.

96 Mr Wilson was of a different race to Mr Singh. Mr Singh stated that he had acted up numerous times previously and he believed he was victimised because Ms Farrell wanted to give a personal favour to the other officer.

97 Ms Farrell was cross examined regarding Mr Singh’s evidence. She denied victimising Mr Singh to give a favour to the other officer. She said that the other officer had already done two afternoons acting up and she asked Mr Singh to swap so that the other officer would get higher duties. As it was just one shift for Mr Singh he would not have been entitled to a higher duty payment.

98 We accept Ms Farrell’s evidence that her reason for asking Mr Singh if he would mind swapping was to make up the third day so that the other officer would get an acting up allowance. Mr Singh would not have been entitled to an acting up allowance for the one shift if he had worked it.

99 The Applicant submitted that in isolation this was a harmless incident but that when you took Ms Farrell’s comment to Mr Perera ‘I am not a racist but I can’t understand you’ and the strip search and television incidents into account then the Singh incident adds more weight.

100 On the evidence before us we are not satisfied that Ms Farrell would have treated an officer of a different race to Mr Singh in the same circumstances any differently. We do not consider that this evidence has any significant probative value when determining whether Ms Farrell had a tendency or propensity to engage in race discrimination or victimisation.

Ms Dogra’s evidence

101 Ms Dogra made a statement and was cross examined. Ms Dogra is Indian. She referred to an incident with Ms Farrell on 16 April 2002 when she was working as a senior correctional officer. Ms Farrell was the Area Manager of G Block at that time and said to Ms Dogra ‘Sandal organise the muster’. Ms Dogra’s colleague said to Ms Dogra ‘Did you hear that? She called you Sandal, she is not Sandal she is Pushpa Dogra.’ Ms Dogra said ‘Don’t worry she knows me for eleven years’. She alleged that Ms Farrell then said ‘She’s the same colour, isn’t she’ and Ms Dogra responded “Watch what you say because that is racist’. Ms Dogra said that she submitted a report about the incident to the Operations Manager as she believed Ms Farrell’s comments were racially discriminatory.

102 At the time Ms Dogra said that she was very angry and upset about the remark and she felt it was racist because of the mention of colour. There were prisoners close by and they were laughing at her. She works with Ms Farrell now and told the Tribunal that she considered Ms Farrell an excellent officer. She had known Ms Farrell for 17 years since she joined the Department and said that this was the only incident she had with Ms Farrell. She stated that they both had respect for each other and that Ms Farrell had never attempted to victimise her for complaining about her.

103 Ms Dogra impressed us as a truthful witness. She was direct and clear and we accept her evidence. The respondent submitted that the comment ‘She’s the same colour, isn’t she’ was an inappropriate remark regarding colour. They submitted that it was a throw away line and that it was not racist.

104 The remark Ms Farrell made to Ms Dogra was inappropriate. However it occurred close to two years before the incidents Mr Perera complained of and was the only incident in a long period of time that Ms Farrell and Ms Dogra had worked together. Ms Dogra made it clear that Ms Farrell never attempted to victimise her because she had reported the incident.

105 We do not consider that this evidence has any significant probative value when determining whether Ms Farrell had a tendency or propensity to engage in race discrimination or victimisation.

Statements made by staff in support of Ms Farrell.

106 Several statements from staff at the MRRC were annexed to Ms Farrell’s affidavit of 6 October 2005. These statements from staff of many different cultural backgrounds expressed support for Ms Farrell, attested to her fairness and her professional and non discriminatory manner in dealing with staff and inmates of multicultural backgrounds. Those staff were not required for cross examination. We accept the evidence contained in those statements. Although that evidence indicates that a number of staff held her in high regard we do not consider it of significant probative value in determining whether Mr Perera was treated less favourably on the ground of race or victimised.

Was Mr Perera treated less favourably?

107 The test is an objective one. Mr Perera was deprived of the opportunity to work across the roster in both the Central Control and accommodation areas of the jail on 2 January 2004. He was told that he could not be understood. He was not rostered back into the area until after Mr Hickie’s instruction of 8 January 2004.Mr Perera had previously been able to work in that area.

108 Ms Farrell described working in Central Control as easier than working in the Goldsmith area of the jail. In Central Control there was no direct contact with inmates and consequently no exposure to the risk of violence from inmates.

109 On the evidence before us we consider that being told he could not be understood and being deprived of the opportunity he previously had to work across the roster in the jail and work in Central Control constituted less favourable treatment.

110 In this instance there is a direct comparator, Mr Allsop, an officer of the same rank as Mr Perera who was given the shift in Central Control that had been allocated to Mr Perera on 2 January 2004. We consider the circumstances to be ‘not materially different.’

Was that less favourable treatment on the ground of race?

111 Characteristic that appertains generally. Mr Perera contended that his accent is a characteristic that appertains generally to people of his race, those of Sri Lankan origin. In submissions the Respondent accepted that accent could be a characteristic that appertains generally, however denied that Mr Perera had been discriminated against on the ground of his accent.

112 The Tribunal had the opportunity to hear Mr Perera give oral evidence. While we were able to clearly understand him, he did speak English with a noticeable accent. We are satisfied that speaking English with an accent is a characteristic that appertains generally to people of the Sri Lankan race.

113 Mr Perera also contended that being softly spoken and lacking assertiveness were also characteristics that appertained to his race. In the absence of any specific evidence relating to Sri Lankan people generally and this characteristic we are unable to make a finding that these are characteristics that appertain generally to Sri Lankan people.

114 In this instance the issue for the Tribunal is whether Mr Perera was treated less favourably on the ground of a characteristic that appertains generally to people of his race, his accent.

115 The officer who replaced Mr Perera on the Central Control shift on 2 January 2004 was of Caucasian background, a different race to Mr Perera.

116 We accept Mr Perera’s evidence that Ms Farrell told him that she ‘could not understand him’ when he asked her the reasons for her decision to change his roster at the time. This was clearly part of a longer conversation. On both Ms Farrell’s and Mr Perera’s oral evidence that conversation included some discussion about Mr Chee, a probationary officer.

117 In explaining her decision in her written response to Mr Perera’s report, written soon after he first complained about the roster change, Ms Farrell referred to his accent. She said that ‘Mr Perera was softly spoken, sometimes lacking in assertiveness and given his accent, on occasion it is difficult to understand him’. In her affidavit of 6 October 2005 she made a direct reference to Mr Perera’s accent and stated ‘…on some occasions, given the fact that he is softly spoken and has an accent, it can be difficult to understand Mr Perera when he is speaking on the two way radio.’

118 Before this Tribunal Ms Farrell’s affidavit and oral evidence set out concerns she had about Mr Perera’s performance. Her evidence about the number of officers dependent on Central Control for their safety and well being indicated the importance of Central Control. On her own evidence she did not raise concerns with Mr Perera about his performance until the incident on 2 January 2004 even though she had supervised him for over twelve months. We find it difficult to accept that if Ms Farrell’s concerns about Mr Perera’s performance were genuine and the role of Central Control was so important that she would have waited that long to act.

119 On the evidence before us Ms Farrell’s concerns about Mr Perera’s suitability to work in Central Control were not shared by Mr Hickie, the Acting Operations Manager of the jail. He made a decision to return Mr Perera to Central Control shortly after the incident. On Mr Perera’s evidence Mr Hickie offered to write him a letter saying that his work was up to date, that there was nothing wrong with it and that his promotional prospects would depend on merit. We accept that evidence.

120 Even if we accepted Ms Farrell’s evidence that she had concerns regarding Mr Perera’s capacity to undertake the duties in Central Control or work with a probationary officer there that does not determine the matter. Section 4A of the ADA contemplates that there can be multiple reasons for a decision and a reason need not be the dominant or a substantial reason for the decision.

121 We agree with the Respondent’s submission that the reason must be a causally operative factor.[Sivananthan v Commisioner of Police, NSW Police Service [2001] NSWADT 44 at 23]

122 We accept that Mr Perera’s evidence that Ms Farrell said “I am not a racist but I cannot understand you.” Ms Farrell referred to Mr Perera’s accent in her written response provided soon after the incident, in her affidavit of 6 October 2005 and in her oral evidence before this Tribunal. We find that Mr Perera’s accent was a causally operative factor in her decision to change Mr Perera’s roster. It was one of the reasons for her actions.

123 We find that Mr Perera was treated less favourably on the ground of a characteristic that appertains generally to people of his race; he spoke English with an accent.

124 Other than Ms Farrell’s view there is no other evidence that Mr Perera cannot be understood at work. He provided evidence of speaking English for some time both in Australia and previously in Sri Lanka, Mr Chamberlain said he had not personally experienced any difficulty in understanding him [para 11 of his affidavit of 13 October 2005].

125 The Acting Operations Manager made a decision to return Mr Perera to Central Control very soon after the incident. We accept the Applicant’s submission that he would not have been returned to Central Control if he was unable to do the job.

126 To succeed in his complaint Mr Perera must also establish on the balance of probabilities that the conduct falls within one or more of the provisions in s 8 of the ADA. Mr Perera submitted that the roster change on 2 January 2004 amounted to denying him access or limiting his access to benefits associated with employment [s. 8(2)(b)] or subjected him to a detriment [s 8(2)(c)].

127 In Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 the Tribunal considered the meaning of detriment in the carer’s responsibilities equivalent of s 8(2)( c). The Tribunal stated [at 82].

In Bonella v Wollongong City Council [2001] NSWADT 194 (at [50]) the Tribunal endorsed the view that the term ‘detriment’ in the context of the sex discrimination equivalent of s 49V(2)(c) ought be given the same meaning as given to the term in the context of section 50 of the ADA (see e.g. Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSWADT 44) namely, ‘loss, damage or injury’. Having regard to those cases, the Tribunal in Bonella (at [41]) thought that the detriment suffered by the complainant must ‘be real and not trivial’ and ‘whether something constitutes a detriment must be determined objectively and not subjectively’.

128 We have applied this test. Ms Farrell’s evidence was that she had just moved Mr Perera for that day, 2 January 2004. The tenor of Ms Farrell’s response to Mr Perera’s report does not suggest a one off decision. Mr Hickie said clearly that unless there were specific reports indicating that Mr Perera should not be working in Central Control he should not be removed and directed his return. That gives weight to the view that Mr Perera was excluded for longer than one day. We find that Ms Farrell had made a decision to exclude Mr Perera from Central Control.

129 The decision not to roster Mr Perera in Central Control did not affect his salary or status. It did involve an injury to his feelings as he was told that he was difficult to understand and was excluded from working in an area that had previously been open to him. We find that involved a real loss and injury to him that was not trivial. He was subjected to a detriment within the meaning of s 8(2)(c).

130 As we have made this finding it is not necessary for us to consider whether s 8(2)(b) applies.

Complaint of victimisation

131 The applicant complained that the incidents of 4 April 2004 that we have referred to as the strip search and television incidents constituted victimisation.

132 Strip search incident. On 4 April 2004 Mr Perera reported the evening muster of inmates to Ms Farrell with another officer by his side. He went to lock the inmates in their cells. The other officer then told him that Ms Farrell had informed him that she had seen an inmate give another inmate a pair of scissors and she wanted it checked out. Mr Perera told him to wait until the inmates were locked in because of his concern that it may cause unrest and be dangerous. The search was done at lock in and no scissors were found. Mr Perera said that he was in charge of the ‘pod’ and Ms Farrell did not tell him about the scissors even though he spoke to her after her conversation with the other officer.

133 Ms Farrell evidence was that she had not instructed Mr Perera to do the strip search on that day and had asked another officer.

134 Television incident. On the same day as Mr Perera was locking inmates into their cells he saw an officer go into a cell and walk out with a television. The inmates for the cell stated that they had paid for the television. Mr Perera asked the officer why he was removing a television the inmates had paid for and the officer said ‘I am doing what I am told.’ In consultation with Ms Farrell, Mr Perera then adjusted the television rental sheet charges and informed the inmates. He said that even though he was the senior officer in charge of the pod Ms Farrell did not inform him of the necessity to remove the television from that pod to another especially at lock in time.

135 Mr Perera reported the strip search and television incidents on 7 April 2004. His report form dated 6 April 2004 was included in his complaint of 21 May 2004 that has now been referred to this Tribunal.

136 Before this Tribunal he submitted that Ms Farrell had broken the ‘chain of command’ by failing to give him the instructions and going directly to his subordinates. In regard to the instruction to search an inmate for scissors he said there were a small number of officers and 64 inmates. If officers went into a cell to strip search an inmate before lock down in circumstances other inmates could move about they may have reacted, unrest could have resulted and it could be dangerous. He had similar concerns regarding the television incident.

137 Mr Perera stated that both these incidents undermined his authority and put him in a difficult situation, where if anything occurred, he would be responsible. He submitted that Ms Farrell’s actions resulted in him being disrespected by others and humiliated. Mr Perera submitted that Ms Farrell’s actions constituted direct race discrimination in employment. In the alternative he submitted that her actions constituted victimisation.

138 Mr Perera also told the Tribunal that Ms Farrell had bypassed him prior to 2 January 2004 although he also said that sometime she did come to him.

139 Mr Perera’s evidence was that she did not give him any instruction to remove a television from a cell. Under cross examination Ms Farrell said she may not have (asked Mr Perera to move the television) but thought that she had.

140 On this point we accept Mr Perera’s evidence that on 4 April 2004 Ms Farrell did not instruct him directly to conduct a strip search of the prisoner nor did she instruct him to move the television from one cell to another.

141 Mr Perera gave evidence about the ‘chain of command’. He stated that there was a procedure to report between the supervising officer and subordinates. The officer in charge of the pod was informed of anything to happen in the pod, then communicated it to their subordinates so that no contradictory instructions were given.

142 Ms Farrell agreed that the chain of command was an important part of the jail system however she also referred to having a team approach. Her evidence suggested that the chain of command was not always strictly followed. According to her evidence if she had strictly followed the chain of command then she would not have given Mr Perera instructions as they would have gone down the ranks to an Assistant Superintendent who would then have conveyed the directions to a Senior Correctional Officer such as Mr Perera. Her evidence was that she spoke to the General Manager directly although there were ranks between her and that position.

143 Under s 50(1)(c) of the ADA victimisation occurs if a person is subjected to a detriment on the ground that he or she has alleged that another person has committed an act of unlawful discrimination. The onus is on Mr Perera to prove, not only that he has been subjected to a detriment, but that there was a causal connection between any detriment suffered and his making an allegation that Ms Farrell has committed an act of unlawful discrimination. The test is an objective one.

144 The Applicant submitted that the relevant legal principles for victimisation were set out in Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42. In that case the Tribunal noted that s.4A of the ADA does not apply to victimisation [at 175]. After reviewing the authorities on the meaning of the phrase ‘on the ground that’ the Tribunal determined that the phrase ‘an operative ground’ was applicable to the test for victimisation [at 178].

145 The Respondent submitted that the correct approach was that taken in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44. In that case the Tribunal adopted the test set out by Kirby J in IW v City of Perth (1997) 191 CLR 1 at 62-64 stating “…it is sufficient if the unlawful reason, that is the ADA that the complainant had lodged complaints of race discrimination, “had a real causative effect in the sense that but for its presence the act complained of would not have occurred” (at page 64)’ [at 43].

146 We prefer the approach followed in the Borg case regarding the meaning of ‘on the ground that’ in s. 50(1) of the ADA.

147 Mr Perera clearly believed that Ms Farrell’s failure to follow the chain of command and directly instruct him regarding the search she wanted conducted and inform him regarding the television move subjected him to a detriment. He claimed that he had been humiliated in front of his subordinates, suffered a loss of respect from his subordinates and prisoners and had potentially been exposed to a risk of harm.

148 We do not doubt that Mr Perera held a sincere and genuine belief that he was subjected to a detriment by Ms Farrell because he had made allegations of racial discrimination about her. However such a belief is not sufficient to prove victimisation.

149 On his own evidence, Ms Farrell had sometimes by passed him on occasions and given orders to his subordinates prior to the roster incident on 2 January 2004 and his complaint about her conduct. The conduct he alleges constitutes victimisation occurred almost three months after he had complained about Ms Farrell’s conduct to the Operations Manager, Mr Hickie. There is no direct evidence that Mr Perera’s complaint about Ms Farrell’s conduct in January 2004 was an operative factor, or indeed played any part in Ms Farrell’s conduct on 4 April 2004.

150 There was nothing to connect these events. On the evidence before us we are unable to draw an inference that his raising of allegations that Ms Farrell had discriminated unlawfully against him was “an operative” factor” for Ms Farrell’s failure to instruct him directly or inform him of matters on 4 April 2004.

151 Even if we could be satisfied that Mr Perera had been subjected to a detriment, we cannot be satisfied that he was subjected to a detriment on the grounds that he had done anything under s 50(1).

152 Similarly if we had adopted the respondent’s test, that is the fact that the complainant had made allegations of race discrimination, ‘had a real causative effect in the sense that but for its presence the act complained of would not have occurred’ the result would be the same.

153 We are not satisfied that Mr Perera was victimised in contravention of s 50 of the ADA by the Respondent.

Race discrimination – the strip search and television incidents

154 The Applicant submitted that the strip search and television incidents amounted to race discrimination in the alternative to victimisation.

155 We have applied the same test for racial discrimination outlined above in regard to the change of roster incident.

156 Section 4A of the ADA applies to racial discrimination. As stated earlier the effect of that section is that where an act is done for two or more reasons it is sufficient if one of those reasons consists of unlawful discrimination. It does not matter whether that reason is a dominant or substantial reason.

157 There is no direct evidence before us that Mr Perera’s race, or a characteristic that appertains generally to people of his race, was an operative factor in Ms Farrell’s conduct on 4 April 2004. Neither do we consider that the evidence supports an inference that Mr Perera’s race, or a characteristic that appertains generally to people of his race, was an operative factor for Ms Farrell’s treatment of Mr Perera on that day.

158 We have no doubt that Mr Perera is sincere in his belief that this was the case. However that is not sufficient to substantiate a complaint. On the evidence before us we are unable to find that Mr Perera was treated less favourably on the ground of his race by Ms Farrell on 4 April 2004.

Relief

159 The ADA was amended by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 which commenced on 2 May 2005. The Savings and Transitional provisions of that Act provide that the former s. 113 of the ADA applies to proceedings relating to a complaint that were not finally determined before the repeal of that section.

160 Section 113 gives this Tribunal the power to dismiss a complaint or find a complaint substantiated. When a complaint is substantiated the Tribunal can make orders, including an order that the complainant be paid damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the Respondent’s conduct.

161 The complaint of discrimination on the ground of race regarding the 2 January 2004 roster change is substantiated.

162 General damages for non-economic loss cover matters such as hurt, humiliation and injury to feelings. In this instance Mr Perera claims he was upset by Ms Farrell’s actions in swapping his shift and telling him that she could not understand him. He was clearly distressed by her reference to his accent and ability to be understood in her response to his report of 2 January 2004. He wanted an enquiry into her actions and her response removed.

163 Mr Perera also placed evidence before the Tribunal regarding consultations with his doctor and a clinical psychologist in the second half of 2005. A psychological report prepared by Ms Kiely on 9 September 2005 stated that Mr Perera had raised an incident at work with her on 26 July 2005 where Ms Farrell had changed his work arrangements because she could not understand his speech. The psychologist stated that she understood that Mr Perera believed that the situation was not handled satisfactorily. In her opinion he suffered from an Adjustment Disorder with Depressed Mood. She also stated that he had an associated depression which was being treated with medication. He was experiencing symptoms of headaches, disturbed sleep patterns, somatic symptoms and was hypersentitive to his environment.

164 The Tribunal accepts that Mr Perera was upset by the incident and distressed by what he perceived to be Corrective Services’ failure to deal with the incident and investigate it properly. While we accept his distress at his removal from the Central Control roster and the comments about his accent and being understood, we consider that the management of Corrective Services responded to his complaint in an appropriate and timely way. Mr Hickie acted swiftly and Mr Perera was able to return to Central Control promptly within 6 days of his report of the incident.

165 Management did not agree to his request to hold an enquiry and in our view they were not required to do so. Management overruled Ms Farrell’s opinion about his suitability to work in Central Control and determined he could return to work there. They dealt with the issue. While management retained Ms Farrell’s response to Mr Perera’s complaint there is no evidence that they took any action against him as a result of her views. In fact on Mr Perera’s own evidence Mr Hickie had offered to write him a letter saying that there was nothing wrong with his work. He refused that offer. Management also agreed to his request for a change of supervisor.

166 We consider an award of $1000 appropriate for the hurt and humiliation that Mr Perera suffered.

167 In terms of economic loss the change of roster did not result in any loss of remuneration to Mr Perera. Mr Perera provided some evidence of lost earnings in regard to the Respondent’s failure to return him to normal duties in July/August 2005 following a period of time off work. In our view this is too remote to have any connection with the events of 2 January 2004. Consequently we do not consider it appropriate to make any award for economic loss.

168 The complaints of victimisation and other complaints of race discrimination are dismissed.

Costs

169 There were no submissions made regarding costs. If any party wishes to apply for costs they may make an application within 14 days. Any application is to be supported by written submissions. Submissions in reply are to be filed within 14 days of receipt of the application and written submissions. Any application for costs will then be determined ‘on the papers’ in accordance with s 76 of the ADT Act.