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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWADT 115
Decision Date: 31 May 2007

CaseChat Overview and Summary

The case of Perera v Commissioner of Corrective Services involved a claim of race discrimination and victimisation in the workplace. The applicant, Mr Perera, alleged that he was subjected to discrimination based on his race and subsequent victimisation by the respondent, the Commissioner of Corrective Services. The dispute was brought before the Anti-Discrimination Board and later heard by the Supreme Court of Queensland. The legal issues that the court needed to address included whether the complaint could be amended to include victimisation and whether the discrimination complaint was substantiated. Additionally, the court had to consider the respondent's failure to return the applicant to his normal duties for a specific period.

In considering these issues, the court found that the application to amend the complaint to include victimisation was granted, allowing the applicant to pursue this aspect of his claim. However, the application to amend the complaint to include the respondent's failure to return the applicant to his normal duties was refused as it was deemed outside the scope of the original complaint. The court found that the complaint of discrimination on the ground of race regarding the roster change on 2 January 2004 was substantiated. Despite this, the complaints of victimisation and other complaints of race discrimination were dismissed as the evidence did not support these claims.

As a result of the findings, the court ordered the respondent to pay the applicant the sum of $1000 within 28 days. The orders reflect the court's determination that while some aspects of the applicant's claims were substantiated, others were not supported by the evidence presented. The decision highlights the importance of substantiating claims of discrimination and victimisation with sufficient evidence to support the allegations.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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