Radvili v Ranstad Australia Pty Ltd

[2016] NSWCATAD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Radvili v Ranstad Australia Pty Ltd [2016] NSWCATAD 58
Hearing dates:	22 March 2016
Date of orders:	30 March 2016
Decision date:	30 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Leave refused
Catchwords:	Race discrimination
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Miller v RailCorp [2008] NSWADT 274 Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92
Category:	Procedural and other rulings
Parties:	Ravil Radvili (Applicant) Ranstad Australia Pty Ltd (First Respondent) Department of Family and Community Services (Housing NSW) (Second Respondent)
Representation:	Counsel: Ravil Radvili (Applicant in person) Mr Shuttleworth (First Respondent) Ms Soin (Second Respondent)
File Number(s):	1610056

Reasons for decision

Background

The Application

1. Mr Radvili ("the Applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the President declining his complaints to the Anti-Discrimination Board ("ADB").

2. The Applicant’s complaints were of race discrimination (under sections 7, 8, 52 and 53 of the Act).

3. The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a). The issue in this case is whether it is fair and just for the Tribunal to give Mr Radvili permission (or “leave”) for his complaint to go ahead: Anti-Discrimination Act, s 96. Mr Radvili bears the onus of persuading the Tribunal that leave should be granted. I have decided not to give Mr Radvili permission for his complaint to go ahead because there is clear evidence that issues about his performance and failure to follow directions were the real reasons for the termination of his placement.

4. The Tribunal conducted a hearing of the application for leave on 22 March 2016. Mr Radvili represented himself and each of the Respondents was represented.

5. The Tribunal declines to grant leave for the race discrimination complaint to proceed against either Respondent for the following reasons.

The Complaint

6. Mr Radvili made a complaint to the President of the ADB on 25 August 2015 against Ranstad Pty Ltd and the Department of Family and Community Services (Housing New South Wales) (“FACS”) alleging race discrimination in employment and aiding and abetting.

7. Mr Radvili alleges that he was engaged to work by Ranstad at Housing New South Wales as a clerk for the period 27th of July 2015 to 31st of October 2015 His Ranstad agent told him that he was permitted to speak languages such as Farsi, Assyrian, Dari and Arabic to clients. He was placed at counter reception to service clients unable to speak English. Mr Radvili alleges that 75% of the clients don’t speak English. Mr Radvili alleges that on his first day he spent until midday with an officer presenting the system and explaining what was going on. He had no access to the system or practical hands on. Every time a client asked Mr Radvili if he could speak Arabic, Assyrian or Farsi the team leader would jump into the conversation, telling the clients that he was not allowed to speak these languages. He was then told directly that he was not allowed to speak these languages and that he had to speak English only. On his fourth day of work, Mr Radvili was asked to sit the New South Wales Department of Housing test in which he achieved 86% - being the highest score ever achieved in the test. Mr Radvili alleges that he was given 12 hours training during the three weeks of his placement. He was never told he was doing anything wrong or not doing well. They just kept repeating that he must not speak with clients in any other language than English. Every day he was told this and they would interrupt if he did speak with a client in Arabic, Farsi, Assyrian or Dari. He was also constantly asked if he is Arab and where did he learn to speak so many languages.

8. On 14th of August 2015 the office manager advised him that due to him trying to speak Arabic and Assyrian his work was terminated. Mr Radvili says that he may have been treated this way because he is from Iran or because the other staff could not speak any other languages. Mr Radvili alleges that if he was a person from Asia and speaking Vietnamese that that would not have been a problem.

9. Mr Radvili had not responded to the Respondents replies to the ADB. Mr Radvili had requested that his complaint proceed and that he relied on the information initially provided.

10. On 17 December 2015 the ADB informed the complainant and Respondents that the President had declined the complaint as lacking in substance.

11. On 18 December 2015 Mr Radvili requested that the matter be referred to the New South Wales Civil and Administrative Tribunal (“the Tribunal”) for a hearing.

Mr Radvili’s evidence at leave hearing

12. At hearing Mr Radvili told the Tribunal poor performance had not been raised with him. There was never any complaint to him. Further he thought that as most of the clients of the Department of Housing didn’t speak English he would be able to reduce the queues waiting for service if he was able to communicate in a language that the clients understood. However he had been constantly interrupted by the team leader and told not to speak in other languages. He was constantly asked by the rest of the staff asking him why he spoke so many languages when he told them that he was from Iran he had then been asked are you Arabic. He thought that one of the team members Penny who was teaching him was teaching him thinks differently to what was taught to others. He had been an engineering around he had learned to speak many languages in order to deal with his clients. He had worked at the Villawood detention Centre 23 years and no one had ever told him that he could not speak these languages he said that there were people from other national backgrounds also on the staff on an occasion he had been asked by the team leader or supervisor to ask a client in a language that the client understood as to why he had always turned up late he thought that he had received less favourable treatment because he had been asked where he was from and asked if he was Arabic on a number of occasions being told constantly not speak another language was also less favourable treatment he thought that the termination of his contract by Christina Pocock of FACS was less favourable treatment.

13. He thought that the detriment he suffered consisted of being asked not to speak other languages. This affected how he could perform, as the queue of clients was very long. He understood that he had been hired because he could speak other languages. Clearly the termination of the contract was a detriment to him financially and it had affected his confidence in applying for other jobs

14. He did not have an actual comparator to his circumstances. He noted that “Penny” who worked next to him, was speaking in her own language to clients. He thought that she was from New Zealand and was able to communicate with Maoris and Polynesians. She had been in her role for six months and was his trainer.

15. Mr Radvili stated that he understood he had been employed by Ranstad. He was concerned that Ranstad had not investigated what the problem had been.

16. He considered that FACS had discriminated against him and that Ranstad had aided and abetted by failure to conduct an investigation. Ranstad had discriminated against him

Response of First Respondent Ranstad

17. Ranstad responded to the ADB that Mr Radvili registered for casual labour hire with Ranstad on 24 July 2015. His work would be on an assignment by assignment basis with no guarantee or expectation of continuity of employment.It was a material term of Mr Radvili’s contract of service with Ranstad that Ranstad was not responsible or in control of the length of any assignment with a host employer.

18. Mr Radvili was placed at Liverpool Housing, the host employer in the role of clerk on a temporary assignment commencing 27th of July 2015. The assignment entered on 14th of August 2015 at the request of the host employer. Ranstad denies discriminating against Mr Radvili on any ground including race. Mr Radvili’s assignment with Housing New South Wales was terminated on reasonable grounds at the request of Ranstad’s client, Housing, the host employer for the following reasons:

• Mr Radvili demonstrated an inability to grasp the systems; and

• Mr Radvili had not taken on board feedback. He had been directed on more than one occasion to communicate in English so that any information he provided to clients could be adequately supervised by his English-speaking supervisors. Mr Radvili had failed to comply with this reasonable instruction.

• It was FACS policy that workers should speak in other languages with clients only when the team leader or senior client service officer requested.

• Mr Radvili had not been engaged as a translator

• Being asked where he had learned to speak so many language was not in itself an act of discrimination.

19. Ranstad had not terminated Mr Radvili’s employment - only his assignment at the host employer. Ranstad had not refused to provide Mr Radvili with services or assistance in securing an alternative assignment.

20. At the hearing Mr Shuttleworth for Ranstad submitted that the aiding and abetting provisions require a Respondent to have taken some form of action. In these circumstances it could not be said that Ranstad had aided and abetted discrimination because Mr Radvili had alleged that Ranstad had failed to take any action.

21. It was clear that as Mr Radvili had told the Tribunal that he had been directed on a number of occasions not to speak in any language other than English and that this was the cause of FACS’ determination to terminate his placement. Mr Radvili had failed to follow lawful directions.

22. Merely asking Mr Radvili where he was from, in what appeared to be a mixed cultural workforce, was not, in itself race discrimination.

23. For Ranstad’s part, Mr Radvili remains a potential candidate for Ranstad. He has been with the agency for six months but positions with his skill sets don’t come up very often. Mr Shuttleworth noted that Mr Radvili’s engagement was a labour hire arrangement whereby Ranstad is effectively the employer in his secondment to Housing.

Response of the second Respondent FACS

24. FACS had advised the ADB on 30 October that Mr Radvili’s contract had been concluded due to poor work performance as he was not able to learn and operate in accordance with FACS’ internal business processes. FACS had terminated Mr Radvili’s engagement effective 14 August 2015. Local management staff had requested that Mr Radvili cease speaking Arabic to clients as there were specific interpreters available at the office on particular days to service clients.

25. At the leave hearing Ms Soin said that FACS denied that it had discriminated against Mr Radvili on the grounds of his race. Mr Radvili was not employed by FACS - he was employed by Ranstad. While there were potentially some holes in FACS’ performance assessment process – Mr Radvili he had been told on numerous occasions to speak in English only. On an occasion he was asked by a supervisor to speak in another language to ask the client why he was consistently late. FACS has designated translators and Mr Radvili was not engaged to be designated translator. It was important to ensure that client service officers were providing accurate information therefore they needed to speak in English to allow their advice giving to be supervised. The mere fact that other staff members had asked Mr Radvili where he came from was not a detriment and could not be said to be evidence of race discrimination.

Principles for granting leave

26. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:◦

• (1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

• (2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

• (3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

• (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

27. 14.   Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the President that it lacked substance.

Relevant Legislation

7 What constitutes discrimination on the ground of race?

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

(a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

8 Discrimination against Applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

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

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

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

52 Aiding and abetting etc.

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

28. To establish a complaint of race discrimination the Applicant must be able to show that

29. a. he was treated less favourably than other persons;

b. that the, or one of the, reasons for the less favourable treatment was his race; and

c. that a comparator (of a different race) would have been treated more favourably in the circumstances and that the Respondent treated him less favourably because of his race . (See Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92 at [213] - [224])

Consideration

The Applicant’s case for leave against First Respondent, Ranstad Pty ltd

30. Mr Radvili told the Tribunal that his employer Ranstad, the first Respondent, had not discriminated against him on the grounds of his race. Rather that Ranstad had aided and abetted FACS by failing to investigate what had occurred. The Tribunal accepts the submission made by the First Respondent that Ranstad’s failure to investigate does not fall within the provisions of section 52. Ranstad did not

“cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.”

31. The complaint against the First Respondent lacks substance. The Tribunal refuses leave for the Applicant to proceed with the complaint of race discrimination in employment and aiding and abetting against the First Respondent.

The Applicant’s case for leave against Second Respondent, FACS.

32. Mr Radvili was neither an Applicant to nor an employee of FACS. His complaint against FACS under section 8 of the ADA cannot succeed. Further Mr Radvili told the Tribunal that he was told on a number of occasions by supervisors not to speak in a language other than English. This evidence was consistent with FACS’ assertion that Mr Radvili’s placement was terminated because of his failure to follow this directive. Further Mr Radvili’s performance in the role was alleged to have been inadequate. Mr Radvili offered the example of Penny who had worked at FACS for 6 months – she was not a new worker unlike Mr Radvili - speaking with clients in Maori or a Polynesian language. The Tribunal notes however that Penny was an experienced worker who was training Mr Radvili. The circumstances appear to be materially different.

33. Were the Tribunal to find that Mr Radvili was asked repeatedly where he had learned to speak so many different languages; where he came from and was he Arabic when he had responded he was Iranian – this does not of itself establish a nexus between Mr Radvili’s Iranian nationality and the termination of Mr Radvili’s placement by his supervisor.

34. The Tribunal finds that the Applicant’s complaint of race discrimination in employment against the second Respondent FACS is lacking in substance.

35. The Tribunal refuses leave to the Applicant to proceed with his complaint against both Respondents.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 March 2016