SANZANA and DIRECTOR GENERAL, DISABILITY SERVICES COMMISSION
[2011] WASAT 208
•23 DECEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SANZANA and DIRECTOR GENERAL, DISABILITY SERVICES COMMISSION [2011] WASAT 208
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 26 SEPTEMBER 2011
WRITTEN SUBMISSIONS
11 OCTOBER 2011
DELIVERED : 23 DECEMBER 2011
FILE NO/S: EOA 42 of 2010
BETWEEN: RUBEN SANZANA
Applicant
AND
DIRECTOR GENERAL, DISABILITY SERVICES COMMISSION
Respondent
Catchwords:
Discrimination on the ground of race in the area of employment - Victimisation - Application to strike out or dismiss proceeding - Application misconceived or lacking in substance
Legislation:
Equal Opportunity Act 1984 (WA), s 36, s 37(2), s 67, s 90(1)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a)
Result:
The respondent's application under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) is upheld
Proceeding EOA 42 of 2010 is dismissed
Category: B
Representation:
Counsel:
Applicant: Self represented
Respondent: Mr T Russell
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Cocks Macnish & Anor v Biundo [2004] WASCA 194
Ellis and Director General of the Department of Transport [2011] WASAT 142
Laurent and Commissioner of Police [2009] WASAT 254
Ruben Sanzana v Director General, Disability Services Commission 2011 WAIRC 00888
Summerville and Department of Education & Ors [2006] WASAT 174
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant was a social carer in the employment of the respondent and had been dismissed. The applicant complained to the Equal Opportunity Commissioner under the Equal Opportunity Act 1984 (WA) of what he said was discrimination on the ground of race in the area of employment, and victimisation.
The Commissioner dismissed the applicant's complaint of discrimination as lacking in substance and his complaint of victimisation was also dismissed as being misconceived. At the applicant's request, the Commissioner referred his complaint to the Tribunal.
Prior to the final hearing by the Tribunal of the applicant's complaint, the respondent applied to the Tribunal to have the proceeding struck out or dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) as being frivolous, vexatious, misconceived or lacking in substance. The Tribunal considered the facts and circumstances in this matter, including the decision of the Public Service Appeal Board delivered on 15 September 2011, which had concluded that the decision by the respondent to terminate the applicant's employment was not unfair. The Tribunal also considered the substance of the applicant's complaint and decided that the applicant's application to the Tribunal could not succeed.
The Tribunal dismissed the application in its entirety.
Introduction
The applicant was at the relevant time employed by the respondent as a social trainer in a number of the respondent's facilities, caring for residents.
On 16 May 2010, the applicant submitted a complaint to the Equal Opportunity Commissioner (EO Commissioner) under the Equal Opportunity Act 1984 (WA) (EO Act). The applicant, whose country of origin is Chile, had been ordered by the respondent to take leave while allegations of substandard work performance issues were investigated and he alleged that he was being discriminated against, harassed and victimised. The EO Commissioner investigated the applicant's complaint and in a letter dated 1 September 2010, wrote to inform the applicant that she had decided that what she took to be his complaint of discrimination on the ground of race in the area of employment was lacking in substance and that his complaint of victimisation was misconceived. Accordingly, his complaint was dismissed.
The applicant under s 90(1) of the EO Act then requested the EO Commissioner to refer his complaint to the Tribunal. The Commissioner did so, by letter which the Tribunal received on 1 November 2010.
In the meantime, in October 2010, the respondent terminated the applicant's employment and the applicant lodged an appeal with the Public Service Appeal Board (Board) against that decision. The Board delivered its decision on 15 September 2011 (Ruben Sanzana v Director General, Disability Services Commission 2011 WAIRC 00888). The Board in that decision dismissed his appeal. The Board also made findings with regard to the applicant's allegation that he had been victimised because he had made complaints about his workplace superiors. The Board concluded that this allegation had not been made out.
The respondent in an application dated 19 September 2011 (although marked as having been received by the Tribunal on 16 September 2011), applied to the Tribunal for an order under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) dismissing or striking out the proceeding in its entirety.
The respondent contends amongst other things that the applicant cannot seek to relitigate issues in respect of his substandard performance and that he is unable to prove that a detriment, being the action taken by the respondent to investigate and address his substandard performance, was taken on the ground of his race. Accordingly, in the respondent's submission, the applicant's claim under the EO Act cannot succeed.
The Tribunal heard that application on 26 September 2011 and reserved its decision.
The Tribunal's power under s 47 of the SAT Act
In Laurent and Commissioner of Police [2009] WASAT 254 (Laurent), Deputy President Judge Pritchard (as she then was) considered in detail the power of the Tribunal in relation to applications under s 47 of the SAT Act. In Ellis and Director General of the Department of Transport [2011] WASAT 142, the Tribunal summarised what her Honour said in Laurent, as follows:
1.Section 47(1) of the SAT Act applies if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance or is being used for an improper purpose, or is otherwise an abuse of process. If s 47 of the SAT Act applies, the Tribunal may order under s 47(2) of the SAT Act that the proceeding be dismissed or struck out and make any appropriate orders.
The Tribunal may exercise this power on its own initiative or on the application of a party.
2.Any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when a party whose case is the subject of an application under s 47 is selfrepresented, does not have the benefit of legal representation or legal training and may have difficulty in precisely setting out their claim in writing.
3.Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, as in this case, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding. The power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case.
4.When, as is the case in this matter, an application is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by an applicant will be made out and consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act.
5.In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the powers of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action.
The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application. While the Tribunal may be conscious of an applicant's desire to air their grievance so that they can be fully ventilated and any witnesses the applicant wants heard can be called, to permit proceedings to continue on the basis of very broad allegations where there is no prospect of success creates a substantial prejudice to the respondent; see Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44] [45].
A complaint is misconceived or lacking in substance where the complainant has no arguable case in fact or law which should be allowed to be resolved at a full hearing; see Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [30] and at [79].
The term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact; see Laurent at [23]
Background
The background facts of this matter as found by the Board are set out in the Board's decision. It is convenient and useful for the Tribunal to set out in full those facts as stated by the Board and adopt them. Some of the facts, including the applicant's dismissal by the respondent, occurred after the date of the applicant's complaint to the EO Commissioner, but they are included here for completeness.
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4.Mr Sanzana was employed by the respondent as a social trainer for approximately seven years. He worked in a number of the respondent's facilities caring for residents, and at the time of the termination of his employment he was working at the Lombardy Crescent Group Home (Lombardy).
5.Lombardy is the home of five male residents who have a range of disabilities. They are aged between mid-forties and mid-seventies. They are not able to care for themselves and require constant supervision and care. The social trainers are responsible for ensuring that every aspect of daily life is managed, including organising leisure and developmental activities, arranging and attending medical and other appointments, managing residents' clothing, supervising showering and other hygiene needs, and preparing and supervising meals. For example, one resident, Christopher, requires a minced-moist diet as specified by the speech pathologist. Another resident, Phillip, is an insulin dependent diabetic with dietary requirements appropriate to his condition. Staff moving to a different home require induction into the particular requirements of that home's residents.
6.There is a communications or report book for staff to record issues and requests and for supervisors to provide direction and, where necessary, reminders. Staff members coming on duty read this record to bring themselves up-to-date. It was noted a number of times in the evidence that it is not a complaints book.
7.Each resident's particular needs and plans are set out in a number of types of records and planning documents, including the annual Lifestyle Plan and Review (LPR), bi-monthly reports and meal time management plans.
8.While each social trainer on duty is responsible for all residents, each social trainer has primary responsibility for one resident, to manage that resident's clothing and personal items, deal with the resident's family, prepare, update and review that resident's LPR and bi-monthly reports, and deal with their resident's allocated money. This is the key worker role, and Mr Sanzana was the key worker for resident Des.
9.The social trainers and their LAS (Local Area Supervisor) had meetings to discuss various issues and the minutes of these meetings were circulated, acting as a reminder of issues to be addressed.
10.The social trainers are rostered over 24 hours seven days per week, mostly working alone except for a handover period, and on some weekdays two social trainers are rostered together which allows one social trainer to take residents to appointments and outings, or to attend training, and for other purposes. The LAS and the LAM (Local Area Manager) also attend the home at various times for meetings and to undertake their own responsibilities.
Mr Sanzana Moves to Lombardy
11.According to Ms Rowland (the applicant's LAS), when it was first known to a number of members of staff at Lombardy that Mr Sanzana would be transferring there from another facility in January 2009, staff members who had worked with him previously discussed him in negative terms. Ms Rowland says she did not know him prior to his transfer there, she took no notice of what was said and was prepared to take him as she found him.
12.Ms Cummings (another social trainer) first met Mr Sanzana at Lombardy and initially they became friends. However, that relationship soured after he made personal comments which offended her and she says she observed his lack of proper attention to the residents.
13.After the first few months, there were issues arising and complaints being made about Mr Sanzana and Ms Rowland experienced difficulties in dealing with him.
14.By July 2009, Ms Rowland had received a number of complaints that Mr Sanzana was spending a lot of time on the computer accessing dating sites and this was investigated. His internet use was found to be excessive and he was counselled.
15.There were complaints about Mr Sanzana’s attitude and lack of attention to issues such as meal time supervision, attending to tasks such as record keeping and report writing, sorting and culling of clothes and purchasing new clothes and a razor.
16.By letter dated 13 November 2009, Ms Carol Cranwell, LAM for Area 4, advised Mr Sanzana that he was required to attend a meeting on 25 November 2009 at 1.30pm with Mr Jeff Clapton, Manager Accommodation Services (East) and herself to discuss a number of performance issues. Mr Sanzana was advised that he was welcome to bring a support person if he wished.
17.The issues to be addressed at that meeting were to include:
•Completion of work related tasks;
•Resident health and hygiene care;
•Mealtime management of residents;
•Accessing non work related websites in accordance with the Information Management, Technology and Telecommunications Policy;
•Maintaining high standards of personal behaviour and professional integrity in accordance with the Commission's Code of Personal Conduct:
•Ensuring communication, relationships, attitude and conduct are positive, appropriate and professional in accordance with the Commission's Code of Personal Conduct.
18.These issues were to be dealt with by a Performance Improvement Plan (PIP).
19.However, before this meeting took place, on 18 November 2009, Mr Sanzana was directed to remain away from work while the respondent investigated ten allegations of breaches of discipline in the period 15 May 2009 and November 2009. Ms Cranwell cancelled the meeting scheduled for 25 November 2009 and advised that the meeting would be rescheduled once the separate suspected breach of discipline process had been finalised.
20.In a letter dated 25 November 2009 the respondent advised Mr Sanzana of the allegations of breach of discipline. The alleged breaches of discipline against Mr Sanzana related to two particular issues. Firstly, it was said that he had admitted to kissing and cuddling a resident at the hostel he had previously worked in and persistently challenged Mr Langridge (who relieved Ms Rowland as the applicant's LAS when she was on leave) when advised that this conduct was inappropriate; had told Ms Rowland the same thing and that he had recently kissed a resident at Lombardy. Secondly, there were a number of alleged incidents of inappropriate behaviour and comments of a sexual nature directed towards staff.
21.On 18 March 2010 an independent investigator provided a report to the respondent of his investigation into the suspected breaches of discipline. He recommended that Dr Chalmers, the Director General, find that, with the exception of two allegations, the allegations against Mr Sanzana were substantiated.
22.By letter dated 31 March 2010 Mr Sanzana was advised by Dr Chalmers that he found that Mr Sanzana had breached discipline in respect of each of the substantiated allegations, that collectively they constituted a serious breach of discipline, and he proposed to issue Mr Sanzana with formal reprimands. He went on to note that prior to the stand down from the workplace Mr Sanzana had been scheduled to participate in a PIP. He said:
I have requested that as a result of this investigation and the serious nature of the breach that your Local Area Supervisor continues with the implementation of the PIP. In addition to the other performance issues that have already been identified, it is recommended that there is a specific focus on the importance of behaving in a positive, respectful manner, consistent with standards and values of the Disability Services Commission and adhering to the Public Sector Code of Ethics and the Commission ' Code of Personal Conduct.
23.Prior to implementing any action, Dr Chalmers provided Mr Sanzana with an opportunity to provide any reasons why formal reprimands should not be issued. Mr Sanzana responded that the Director General had 'failed to acknowledge the fact that I had grievances lodged against the persons who fabricated allegations against me, well before they suspended me'. He responded to the findings of the investigation and said that the requirement for him to meet with his supervisor, Ms Rowland, in respect of the PIP was unjust and further victimisation against him given that she was the person against whom he had previously made serious allegations.
24.Dr Chalmers wrote to him again on 27 April 2010, advising him that he was to be deployed to another work location and to contact the relevant LAM regarding his return to work arrangements. Mr Sanzana met with his new LAM, Ms Maxine Martin, on 6 May 2010. At this meeting Mr Sanzana refused to sign the PIP on the basis that he denied many of the performance deficiencies identified in the PIP and advised that he wished to lodge a formal dispute under clause 49 of the Social Trainers General Agreement 2008.
25.By letter dated 19 May 2010, Dr Chalmers advised Mr Sanzana that as he had declined to address his substandard performance issues by participating in the PIP, an investigation would be conducted in order to determine whether his performance was substandard. He was informed that there was a range of actions available to Dr Chalmers should it be found that Mr Sanzana's performance was substandard and they included transfer, reprimand or dismissal.
26.Mr Neuzerling was appointed and investigated the following alleged issues of substandard performance:
1.Mr Sanzana had failed to complete reports such as the bi-monthly report and the LPR for the resident Des for whom he was the key worker, on time.
2.He failed to cull clothing and purchase replacement clothing and an electric shaver for Des in a timely manner.
3.He failed to complete regular health and hygiene routines as required, including not completing the bowel movement chart, not adhering to bedwetting procedures and inadequate dressing of residents.
4.He failed to observe mealtime management routines in that he placed sugar in the tea and served normal ice cream for a resident who was a Type 1 diabetic, failed to provide thickening fluid in drink for a resident as required, and provided food which was unchopped for a resident who was on a minced-moist diet.
5.During 2009 he had excessively and inappropriately used the computer facilities at Lombardy.
6.He used inappropriate behaviour or conduct towards residents in that it was alleged that he had advised both Ms Rowland and Mr Langridge that he had kissed and cuddled a resident at Lombardy, and that he had done so previously at other workplaces and could see nothing wrong with the practice.
7.He failed to address other staff members in accordance with the DSC Code of Conduct in particular that he repeatedly shouted at his peers and refused to listen to their point of view.
27.On 25 July 2010, Mr Neuzerling provided to the respondent a 57 page report in which he examined the allegations and found that on the balance of probabilities, Mr Sanzana had failed to complete the required work, had not performed it as directed or instructed, had not completed it to the necessary standard and in the case of appropriate computer use, he had breached discipline displaying substandard performance and his behaviour towards others was not appropriate. He found on the balance of probabilities that Mr Sanzana's work performance was substandard and he recommended that Mr Sanzana be dismissed.
28.Mr Sanzana's employment was terminated on the grounds of substandard performance.
Preliminary issue Tribunal's jurisdiction
The first issue before the Tribunal is whether the applicant has now raised issues which go beyond the complaint determined by the EO Commissioner.
The Tribunal's jurisdiction is limited to the complaint referred to it by the EO Commissioner and does not extend to hear allegations that are not in the original complaint lodged with the EO Commissioner; Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 at [4], [36], [49] and [51]; Summerville and Department of Education & Ors [2006] WASAT 174 (Summerville) at [11].
It is clear that the Tribunal only has jurisdiction to deal with the issues raised in the complaint determined by the EO Commissioner and no others. As the then President of the Tribunal said '… the Tribunal in equal opportunity matters does not have a roving commission to deal with fresh complaints. If a person has fresh complaints, they must be referred to the Commissioner and dealt with in accordance with the (EO Act)'; Summerville at [12].
It is therefore necessary to analyse what it is that the applicant complained to the EO Commissioner about on 16 May 2010. Obviously, anything not included in his complaint lodged with the EOC Commissioner cannot be considered by the Tribunal.
The applicant's complaint to the EO Commissioner
The applicant's complaint to the EO Commissioner is dated 16 May 2010. In it, he seems to be alleging discrimination on the ground of race in the area of employment, and victimisation for complaining about discrimination. He says that the relevant events happened 'from May 2009'.
His grounds as set out in his complaint are as follows:
1.On 27 July 2009, the applicant in an email to Mr Ron Dobrich, another LAM, and copied to Ms Wendy Cox, the respondent's Executive Director, complained about Mr Langridge, saying that there was an incident that day, during which Mr Langridge had been rude and aggressive towards him and that as a result he felt upset and humiliated.
2.The applicant had worked with Mr Langridge earlier, in May 2009, and he alleges in his complaint that Mr Langridge had previously said to him 'people like (the applicant) should be grateful to have a job in this country'.
3.The applicant also alleges in his complaint that when he spoke to Mr Dobrich following the sending of that email, Mr Dobrich said to him 'you just come to create problems into this country'.
4.On 3 August 2009, Mr Dobrich sent a memorandum by email to the applicant, saying that he had met with Mr Langridge to discuss the issues raised in the applicant's email to him and that he expected that Mr Langridge would apologise to the applicant for raising his voice to him. In the same memorandum, Mr Dobrich raised some additional concerns about the applicant's work performance.
5.On 4 August 2009, the applicant wrote to Ms Cox, complaining that Mr Dobrich was 'victimising and harassing me'. In that letter, he also said that Mr Langridge had apologised to him in the following terms:
I apology as directed. Is up to you if you accept my apologies but the investigation is still on.
6.On 10 August 2009, Ms Cox wrote to the applicant, informing him that his workplace grievance would be dealt with as soon as possible and offered to meet with him.
7.In September 2009, the applicant's LAS, Ms Rowland, returned from leave and the applicant alleges that she 'started a series of harassment and victimisations against my person'.
9.On 23 September 2009, the applicant wrote again to Ms Cox, again complaining about the 'harassment and victimisation that I have been subjected at my workplace (by Ms Rowland) as a consequence of my current grievance against Management'. He says in that letter that Ms Rowland 'seems determinate to find any fault in my work performance to later harass me with nasty emails'. He complains of Ms Rowland's 'lack of confidentiality and competency'. He requested a meeting with Ms Cox, to include other staff at Lombardy House, to express their concerns 'in regards LAS's performance'.
10.The applicant in his complaint says that on 14 November 2009 he was informed in person by his new LAM, Ms Carol Cranwell, that he had been 'suspended from work as allegations had been made against me'. The applicant wrote to Ms Cox informing her of the situation and asking her about the status of his 'current grievance against Mr Langridge, Mr Dobrich and Ms Rowland'.
11.On 4 December 2009, Ms Cox advised the applicant as follows:
As there are currently other matters being investigated, I will defer seeking clarification of the matters you have raised in your letter until immediately after the investigation.
The applicant then goes on in his complaint to express his difficulty in understanding 'the discrimination, harassment and victimisation I have been subjected for trying to use my basic human rights to complain'. He said that it is obvious that 'my right to complain is not respected just because I am from a different ethnic background'. He concludes as follows:
From the moment I started my position at Lombardy House in January 2009 till I made my first allegation against Mr Langridge, in July 2009; there were not issues about my work performance.
During the course of the EO Commissioner's investigation of the applicant's complaint, he was asked by the EO Commissioner 'to provide any further evidence you may have to show that you were treated less favourably in your employment than any other person who was being investigated regarding work performance issues who was not of your race'.
In his reply, the applicant said:
I have worked for DSC for seven years. Never my work performance has been questioned. I have never been counselled about work performance before. How can it be explained that just after I made serious allegations against the three people mentioned before, my work performance suddenly is an issue?
The applicant made further submissions to the Tribunal in respect of the respondent's strike out application. He makes a number of unsupported allegations against the respondent, including:
a)They (the respondent) would not employ a nonEnglish background person in promotional position. If those people apply for promotional position they just get rejected.
b)During my seven years working as a carer for disabled people in DSC I was subjected to numerous racial and other types of abuses. In some of those workplaces is a common practice to bully people with no English background for their accents, skin colour, culture or for anything related to their ethnic background. We cannot complain about it for fear of further harassment and victimisation. It is part of the culture at DSC.
c)However to complain against a staff member from management at DSC is just like 'committing suicide'. We, the people with no English background, should be just grateful to have a job in Australia, as Mr Langridge said to me in May 2009. As long as we take anything and do not complain, we can keep our jobs.
It would appear that the applicant now complains that he has been discriminated against on the ground of his race during the entire seven years while he was employed by the respondent. However, as the Tribunal has already observed, these are not matters which the Tribunal can consider. The applicant's complaint states that the discrimination and victimisation only arose after he lodged complaints against other officers of the respondent.
EO Act
Section 36 of the EO Act provides as follows:
Racial discrimination
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of; or
(b)a characteristic that appertains generally to persons of the same race as; or
(c)a characteristic that is generally imputed to persons of the same race as,
any relative or associate of the aggrieved person, the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat persons; or
(e)segregates the aggrieved person from persons,
who are not of that race.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if the discriminator requires the aggrieved person to comply with a requirement or condition
(a)with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 37(2) relevantly provides as follows:
It is unlawful for an employer to discriminate against an employee on the ground of the race of the employee
…
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
…
In order to establish a claim of discrimination on the ground of race, the applicant must demonstrate that he has, on the ground of his race, been treated less favourably in the same circumstances than a person of a different race. The applicant in fact makes no such claim in his complaint to the EO Commissioner. He says that his issues only began in May 2009, when Mr Langridge is said to have made the statement 'people like (the applicant) should be grateful to have a job in this country'. The applicant subsequently complained to the respondent, not about that particular remark, but about the way in which he was treated by Mr Langridge, and then by others.
As the EO Commissioner observed to the applicant during the course of her investigation of his complaint, even if Mr Langridge and Mr Dobson did in fact make the comments as the applicant alleges, a fact which the respondent says is denied, that is not sufficient to substantiate an allegation of discrimination on the ground of race. To substantiate that allegation, the applicant would need to identify a person of a different race, with the same work performance issues as the applicant, who was treated more favourably than the applicant. The applicant in his complaint does not attempt to do so. Instead, the applicant links his performance review and subsequent suspension with the lodging of complaints against his supervisors and says that it was only after he had lodged those complaints that his work performance became an issue.
The Tribunal considers that, notwithstanding the applicant's use of the word 'discrimination' in his complaint to the EO Commissioner, the applicant is not complaining, either in fact or in substance, about discrimination within the meaning of s 36 of the EO Act, but instead is complaining about victimisation under s 67(1)(f) of the EO Act.
Section 67 of the EO Act provides as follows:
Victimisation
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA or IVB,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act.
As the Tribunal has observed earlier in these reasons, the applicant lodged a complaint with Mr Dobrich, the applicant's manager, about Mr Langridge, the applicant's supervisor, saying that Mr Langridge had been rude and aggressive towards him. The applicant in that complaint made no mention of his race or any discrimination against him on that ground. The applicant subsequently wrote to Ms Cox, complaining that Mr Dobrich had been unfair to him, had harassed him and had victimised him. He also complained about Ms Rowland on the same basis. He further complained about the terms of the apology which he had received from Mr Langridge. Again, the applicant in those complaints made no mention of his race on that ground.
For the complainant to succeed in his claim of victimisation under the EO Act, he would need to demonstrate that he had made an allegation of discrimination on the grounds of his race to another person and that as a result he was subjected to or it was threatened that he would be subjected to a detriment.
The applicant did not in fact make any such allegation to either Mr Dobrich or Ms Cox. The Tribunal therefore cannot see how an allegation of victimisation under the EO Act could succeed.
Findings on strike out application
The Tribunal, for the reasons set out above, finds that:
a)the applicant's complaint of discrimination on the ground of race in the area of employment is misconceived; and
b)his complaint of victimisation under s 67 of the EO Act is lacking in substance.
The Tribunal therefore dismisses the applicant's application under s 47 of the SAT Act on the basis that it has no realistic prospect of success.
Orders
1.The respondent's application under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) is upheld.
2.Proceeding EOA 42 of 2010 is dismissed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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