Saravi v Nine Entertainment Co Pty Ltd

[2024] NSWCATAD 207

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Saravi v Nine Entertainment Co Pty Ltd [2024] NSWCATAD 207

Hearing dates:

29 and 30 April 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
K Stubbs, General Member

Decision:

The application is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of a person’s race – employment - direct discrimination – indirect discrimination

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Purvis v New South Wales [2003] HCA 62; 217 CLR 92

Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251

Category:

Principal judgment

Parties:

Mark Saravi (Applicant)
Nine Entertainment Co Pty Ltd (Respondent)

Representation:

Counsel:
M Cobb-Clark (Respondent)

Solicitors:
Applicant (Self-represented)
Thomson Geer (Respondent)

File Number(s):

2023/00190290

Publication restriction:

N/A

REASONS FOR DECISION

1. Mr Mark Saravi, (“Mr Saravi” or “the applicant”) in these proceedings, claimed that Nine Entertainment Co Pty Ltd (“Nine” or “the respondent”) contravened the Anti-Discrimination Act1977 (NSW) (“the Act”) by subjecting him to detriment within the meaning of s8(2)(c) of the Act from June 2022 until 18 December 2022.

2. Mr Saravi’s allegations were that Nine failed to properly investigate his allegations of bullying, failed to stop the bullying and placed him on a performance improvement plan (“PIP”) and pressured him to resign because he made the allegations of bullying.

3. For the reasons that follow, Mr Saravi did not establish that Nine discriminated against him on the ground of race and the application is dismissed.

Evidence

4. Evidence was given by:

1. Mark Saravi, Senior Software Engineer in Web Digital Engineering Team;

2. Gautham Bhonsle, Engineering Manager of Web Digital Engineering Team;

3. Andre Lackmann, Technology Director for Publishing and Enterprise Practices;

4. Isabella Serg, People and Culture Business Partner for the Digital Business Unit;

5. Luke Blair, Senior Engineering Manager for Publishing Audience;

6. Stuart Leyland, Principal Engineer; and

7. Luke Harrington, People Solutions Manager.

5. The following is a chronology of events based on the contemporaneous documents before the Tribunal and evidence given by witnesses which was not controversial.

6. Mr Saravi commenced employment with Nine in 2018 on a fixed term contract and in May 2021 was appointed on a permanent basis as a senior engineer. In 2022, Mr Saravi was a senior software engineer in Web Digital Publishing Team. He worked in a team of about 7 people. Part of his role involved working with Mr Leyland. He reported to Mr Bhonsle. Mr Blair was Mr Bhonsle’s manager and Mr Lackmann was Mr Blair’s manager,

7. Mr Saravi alleged that Mr Leyland commenced to bully him June 2022. Before the Tribunal he did not allege that the bullying was on the ground of race. Broadly speaking, the alleged bullying and harassment consisted of Mr Leyland asserting that Mr Saravi was an incompetent engineer.

8. On 8 July 2022, Mr Saravi sent a message to Mr Bhonsle regarding Mr Leyland. Mr Saravi stated that Mr Leyland’s behaviour towards him during a meeting “became very aggressive and almost yelling at me.” He also stated that “this is for your information… and I don’t expect any action from you…”

9. On 11 July 2022, Mr Bhonsle wrote “I understand your predicament and know how you feel. Thank you for speaking. I wish for the team to be treated fairly and kindly by everyone. Let's find common ground and I'll try to ensure that we as a team are not faced similar situations going forward. Please involve me in such discussion in future.”

10. On 18 July 2022, Mr Saravi sent a message to Mr Bhonsle regarding Mr Leyland. He proposed a meeting between himself, Mr Bhonsle and Mr Leyland to discuss issues he had raised.

11. On 26 July 2022, Mr Saravi sent a message to Mr Blair regarding Mr Leyland. Mr Blair organised a meeting the next day. Following the meeting, Mr Blair wrote to Mr Saravi that Mr Bhonsle would contact the Human Resources business partner (“HR”) “and work together to objectively investigate your key concerns raised.”

12. On 19 August 2022, Mr Saravi sent a message to Mr Bhonsle: “I was thinking about yesterday's changes in the team, and I think this is what I was looking for. If we can return the normal practises and restore the confidence in a team, in my view I was achieved what I was looking for. I'm not looking for any personal apology and whenever you think there is an agreement to cooperate with the plan, I'm happy to consider my issue as resolved.”

13. On 13 October 2022, Mr Saravi exchanged messages with Mr Bhonsle in regard to involvement of HR. Mr Bhonsle stated that HR was involved.

14. On 17 October 2022, Mr Bhonsle sent an email to Mr Saravi following from an earlier conversation between them. The email recorded “challenges and concerns” raised by Mr Saravi about Mr Leyland. Mr Bhonsle stated in the email that he hoped that the team could proceed in a respectful and collaborative manner. He acknowledged friction and conflict, agreed to find a suitable mentor for Mr Saravi to assist him with “effective communication methods for better persuasion.”

15. An hour later Mr Saravi sent an email to Mr Bhonsle raising concerns about Mr Leyland’s’ conduct which Mr Saravi described as bullying and harassment and stated, “ if the past few months is anything to go by my future in Nine will be very grim as there is such a discrimination and bias against me from someone with the position of power and influence.”

16. Mr Saravi raised the issue of the bullying with Mr Blair on 28 October 2022. Mr Blair is alleged to have said to Mr Saravi “go find a job elsewhere” and “we could vaporise you.”

17. On 28 October 2022 Mr Saravi contacted Ms Serg in HR about making a complaint about bullying and harassment. Mr Harrington conducted the investigation from 31 October to 7 November.

18. Mr Harrison conducted an investigation into Mr Saravi’s complaint about the conduct of Mr Leyland, Mr Wong and Mr Bhonsle in early November 2022 and provided a copy of the investigation report to Ms Serg and Mr Blair on about 18 November 2022.

19. During the investigation, Mr Harrison reviewed messages and had interviews with Mr Saravi, Ms Tran, Mr Zhou, Mr Da, Mr Kinsella (all members of Mr Saravi’s team) as well as Mr Leyland, Mr Wong and Mr Bhonsle.

20. On 7 November Ms Saravi met with Mr Harrington. Mr Saravi did not suggest to Mr Harrington that the bullying occurred because of race.

21. On 8 November 2022, Mr Saravi met with Ms Serg and Mr Lackmann. They advised him of their intention to commence a PIP regarding his communications with managers and team members as well as complying with directions. Mr Saravi was informed that because the investigation into his complaint was underway, the PIP would not commence until the investigation was completed, however he was asked at the meeting to attend a meeting to set out the foundations of the PIP. During this meeting Mr Lackmann asked Mr Saravi to resign with an offer of a financial payment. Mr Saravi alleged that Ms Serg told him that all his complaints would be dismissed and that his employment would be terminated. She said “write your own narrative and resign…”

22. On 9 November 2022, Mr Saravi sent a message to Ms Serg and Mr Lackmann. He stated that he was first “attacked” by Mr Leyland in June 2022. He also complained about the conduct of Mr Wong and Mr Bhonsle’s conduct of failing to protect him. He admitted that he recorded a conversation with Mr Bhonsle without permission but asserted that he did that to protect himself. He also stated that he would not be resigning and would be happy for a performance assessment, comparing his performance against other team members.

23. On 11 November 2022, Mr Saravi met with Ms Serg and Mr Lackmann. Mr Saravi stated that Ms Serg repeated her request for him to resign. She repeated that all the claims would be rejected and stated, “there is no way that we terminate Mr Leyland for someone like you.”

24. On 16 November 2022, Mr Harrington finalised his investigation report. He found none of the allegations substantiated. Mr Saravi was not provided with a copy of the report. Mr Harrington made numerous recommendations including a mediation between Mr Leyland and Mr Saravi.

25. On 18 November 2022, Nine sent a letter to Mr Saravi which stated that none of the allegations had been substantiated.

26. On 23 November 2022, during a meeting, Mr Saravi was informed that none of the allegations had been substantiated.

27. There is an exchange of emails between Mr Saravi and Ms Serg on 24 and 25 November 2022 about the investigation result being unsubstantiated and about a formal improvement plan being developed to address aspects of his behaviour.

28. Mr Saravi requested for the meetings to discuss the formal improvement plan to be recorded. Ms Serg did not agree to this request. She stated that he could bring a support person to the meetings or have some one from the HR team attend.

29. On 9 December 2022, Mr Saravi received a letter from Mr Blair regarding the performance and behavioural expectations. The letter states that the meeting that morning was ceased as Mr Saravi sought to record it. Mr Blair alleged in the letter that Mr Saravi’s behaviour and communication since October 2021 had at times been inappropriate. The behaviour included raising his voice, interrupting and speaking over the top of someone else who was already speaking as well as disrespectfully arguing both verbally and in emails exchanged with Ms Serg on 24 and 25 November and subsequent emails to Ms Batchelor.

30. On 8 December 2022, Mr Saravi was officially notified of a PIP. On 19 December, Mr Saravi resigned.

The allegations

31. Mr Saravi alleged that the discrimination occurred because of his race. Mr Saravi identified his race as Iranian.

32. Mr Saravi made a number of allegations against Nine. These were that there was direct discrimination within the meaning of s7(1)(a) of the Act:

1. Nine supported and protected his colleagues harassing and bullying him;

2. His complaint against Mr Leyland’s conduct (harassment and bullying) towards him was not proved while poor performance was proved against him by “default”; and

3. Nine blocked and frustrated his attempts to stop the bullying and harassment.

33. Allegations of indirect discrimination within the meaning of s7(1)(c) of the Act were that:

1. Nine condoned Mr Leyland’s conduct; and

2. Investigation by Nine into Mr Leyland’s conduct found no wrongdoing.

34. Mr Saravi identified detriment to mean “loss of hope and motivation” as a result of the conduct set out above and the decision he made to resign from Nine on 19 December 2022.

35. Mr Saravi identified staff in HR and managers of his team as the perpetrators of the alleged conduct. His evidence was that,

1. Mr Blair said to him on 18 October 2022 “We could vaporise you”;

2. Ms Serg said to him during a meeting in November 2022 “There is no way we would terminate Mr Leyland for someone like you”; and

3. Mr Blair said to him on 28 October 2022 “Go find a new job”.

36. Mr Saravi alleged that Ms Serg decided to ignore his complaint and determined to start a PIP on 4 August 2022.

37. Mr Saravi relied on the assertion that Ms Serg had no evidence that he had any performance or behavioural issues prior to determining to commence the PIP for “strong communication issues, has challenges with communication.” Mr Saravi submitted that this demonstrated that she stereotyped him based on race, which is that an Iranian migrant would be disrespectful, aggressive, loud and disruptive.

38. Mr Saravi alleged that Ms Serg’s motive was not to support Mr Bhonsle’s lies about his incompetency and communication problems, but her own hate and contempt for an Iranian migrant.

Consideration

39. Mr Saravi’s case was that Mr Leyland bullied and harassed him, not because of race, but when he reported the bulling and harassment, Nine failed to investigate the complaint, commenced performance management and pressured him to resign and that these three actions were taken because of his race.

40. It is not in dispute that Mr Saravi is of Iranian descent and that this constitutes race for the purpose of s 4 of the Act or that Nine was Mr Saravi’s employer.

41. Mr Saravi has the onus of proving that he was treated less favourably by Nine compared to the way Nine treated or would treat another employee not of his race in circumstances which are the same or not materially different, that the conduct alleged was on the ground of race and that Nine subjected him to detriment.

42. The issues in dispute are whether the manner in which Nine investigated the complaint and/or issued the PIP were detriment within the meaning of s 8(2)(c) of the Act.

43. The relevant inquiry is, why, on an objective basis, Nine acted. Was it because of or by reason of that person’s status or attribute? Motive, purpose and effect of the treatment may bear on the question of causation but does not replace the centrality of the question of why; Purvis v New South Wales [2003] HCA 62; 217 CLR 92 [13], [142] and [236],

44. Regarding the investigation, we find that Mr Harrington conducted the investigation consistent with the relevant policies. He met with Mr Saravi and held interviews with the relevant people involved. Mr Saravi did not point to any fact or any inference that could be made to suggest that the manner in which Mr Harrington conducted the investigation or reached his conclusions was on the ground of Mr Saravi’s race.

45. The next allegation of discrimination is that the PIP was commenced against Mr Saravi on the ground of his race. While Mr Saravi admitted that had a habit of speaking at length, as he is very good on detail, he denied that sometimes he found it difficult to stay on topic. His evidence was that it was his responsibility to give details. He did not agree that his communication was problematic or deficient.

46. Mr Harrison’s evidence was that Mr Bhonsle contacted him in about September 2022 to discuss concerns about Mr Saravi’s performance, in particular about an inability to communicate succinctly, a tendency to get fixated on certain things which adversely impacted on his relationships with other team members.

47. Mr Harrison made a number of observations about Mr Saravi, which are recorded in the investigation report. He observed that Mr Saravi had at times substantial difficulty expressing himself and staying on topic. He disclosed that this may be because of a medical condition and had a tendency to get bogged down into detail and had a reluctance to shift his perspective.

48. Ms Serg’s evidence was that during a meeting with technical directors and senior engineering managers within the Product Engineering Team in early August 2022, she heard that there were issues with Mr Saravi's communication abilities and his ability to work collaboratively and effectively with other team members.

49. There is substantial evidence before the Tribunal that the PIP was commenced because Nine held a view about Mr Saravi’s communication skills. Having observed the witnesses give their evidence and considered all the material before the Tribunal, particularly the contemporaneous documents, we have reached the view that the PIP was commenced by Nine because of concerns it held about his communication skills and not because of his race.

50. Mr Saravi did not lead any evidence as to a how a person who was not of Iranian descent who had made a complaint against another employee would have been treated. Simply believing or feeling that you have been discriminated against is insufficient to satisfy the onus in the Act. An applicant needs to satisfy the Tribunal that the discrimination in fact occurred. There was no evidence that the PIP was commenced on the ground of Mr Saravi’s race other than Mr Saravi’s belief that Nine discriminated against him on the ground of race. We reject Mr Saravi’s assertions that the PIP was commenced on the ground of his race.

51. Perhaps Nine missed an opportunity in rejecting Mr Harrison’s recommendation for there to be a mediation between Mr Saravi and Mr Leyland and for Mr Saravi to disclose issues to members of his team instead of moving directly into a PIP. There was no suggestion that Mr Saravi lacked technical skills and he took his work very seriously. However, we do not consider that Nine decided to proceed to a PIP on the ground of Mr Saravi’s race.

52. There is no direct evidence or cause to make an inference that the PIP was commenced because of Mr Saravi’s race or as retribution because as an Iranian migrant he made a bullying complaint about another employee.

53. The next set of allegations involves words allegedly said by Mr Blair and Ms Serg. In their statements Mr Blair and Ms Serg denied that they said the words as alleged. After closely observing Mr Blair and Ms Serg give evidence and considering all the material before the Tribunal, we find that there is insufficient evidence to prove that Ms Serg and Mr Blair said the words to Mr Saravi as alleged. Even if those words were said, they do not on their face suggest that there was any reference to Mr Saravi’s race.

54. Mr Saravi identified conditions or requirements that he had to comply with in his Points of Claim as an assertion that Nine “condoned Mr Leyland's actions and behaviour and never distanced itself from that and also investigation by Mr Harrington didn't find anything wrong in his actions. It means forcing me to do the tasks that were impossible and only could destroy my reputation.”

55. In Secretary, Department of Foreign Affairs and Trade v Styles  (1989) 23 FCR 251 at 257 the four elements involved in establishing indirect discrimination were identified as:

1. The imposition of a requirement or condition;

2. Disparate impact of the requirement or condition, that is, a substantially higher proportion of persons who do not have that disability, comply or are able to comply with the requirements or condition;

3. The requirement or condition is not reasonable; and

4. Inability of the complainant to comply.

56. We do not consider the allegation made by Mr Saravi in the Points of Claim came within the meaning of s 7(c) of the Act and we find the claim unsubstantiated.

Orders

57. The Tribunal makes the following order:

1. The application is dismissed.

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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: 25 July 2024