Sareen v Queensland Rail

[2017] FCCA 2439

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAREEN v QUEENSLAND RAIL [2017] FCCA 2439

Catchwords:
PRACTICE AND PROCEDURE – Disability discrimination – application for summary dismissal – no disability identified – no causation identified – application summarily dismissed.

Legislation:

Australian Human Rights Commission Act 1986, s.49PH(2)

Federal Circuit Court of Australia Act 1999, s.17A

Federal Circuit Court Rules 2001, r.13.10

Applicant: INDU SAREEN

Respondent: QUEENSLAND RAIL

File Number: BRG 935 of 2016

Judgment of: Judge Jarrett

Hearing date: 27 February 2017

Date of Last Submission: 27 February 2017

Delivered at: Brisbane

Delivered on: 6 October 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: MinterEllison

ORDERS

1. The application filed on 17 October, 2016 be dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 935 of 2016

INDU SAREEN

Applicant

And

QUEENSLAND RAIL

Respondent

REASONS FOR JUDGMENT

1. On 7 October, 2016 Ms Sareen commenced these proceedings in which she alleges that the respondent, Queensland Rail, contravened the Disability Discrimination Act 1992 (Cth). Her application was not commenced within the time limited for commencing these proceedings, but was filed a few days late. However, the respondent seeks to take no point about that and says that it is unnecessary to decide whether an extension of time should be granted because the proceedings should be nonetheless summarily dismissed.

2. These reasons relate to the respondent’s application for summary dismissal of the proceedings.  They are predicated upon the assumption that if the proceedings are not summarily dismissed, the applicant should have an extension of time within which to commence these proceedings sufficient to regularise the proceedings.

The nature of the claim

1. Ms Sareen’s application to this Court was preceded by complaint to the Australian Human Rights Commission. Her complaint to the Commission was terminated and a notice of termination given pursuant to s.46PH(2) of the Australian Human Rights Commission Act 1986 (CTH) on 3 August, 2016.

2. In her application to this Court, Ms Sareen says that she is complaining about the following discrimination:

   claim against [undecipherable] 10 years of my Australian work experience

   loss to my Professional career

   (As per the attached details of complaint to Australian Human Rights Commission)

3. Ms Sareen attached to her initiating application her original complaint to the Commission, together with the Commission’s letter to her that enclosed the notice of termination which explained the Commission’s reasons for terminating her complaint. 

4. The operative part of Ms Sareen’s application to the Commission is entitled “Request for Justice”.  In it she describes herself as a 50-year-old female professional who migrated from New Delhi, India to Australia in December, 2005.  She worked with Queensland Rail as a senior internal auditor from about September, 2006. 

5. Her complaint is against a manager who she says, demonstrated behaviour and attitude towards her which “killed my 25 years of educational and professional confidence”.  She says that in August, 2014 she was “put under such difficult circumstances compounded with the threat of disciplinary action” that she felt that resignation was the only option left for her.  She says that “my body was going through lot of changes and I was having significant health issues.  I requested for a transfer to work under some other manager or department but no one was prepared to listen to my request.”

6. In her complaint to the Commission Ms Sareen made it clear that she had been placed on two performance reviews by her manager, both of which she thought were unfair.  In her written complaint to the Commission she describes the first in the following terms:

   I was working with Queensland Rail as a senior auditor Mr Dimitri Constantinous joined Queensland Rail as Audit Manager in June 2012.  In my first audit with him, there was a delay by a few days in completing the planning work as I did not get all the required information from the client.  I told my manager Dimitri, that I understand planning has been delayed by two days but I assure you if I will get the required information from the client, I will make up for the time lost in planning.

7. Ms Sareen says that her manager did not accept her response and instead put her on a performance improvement plan.  She says that she “went through the process” that was very stressful but thought that if she wanted to save her professional career she had to comply.  The outcome of the performance review seemed to indicate that Ms Sareen was a “role model for the audit team at Queensland Rail”.  Ms Sareen says that Dimitri recommended her for promotion.  However, even though “two years passed smoothly” Ms Sareen was not promoted. 

8. A new person joined the audit team in September – October, 2013.  When Ms Sareen’s manager, Dimitri went on leave in December, 2013 he nominated that new team member to act in his position rather than Ms Sareen, who considered that she ought to have been placed in that role given that she was the most senior team member.

9. Ms Sareen says that there was an incident in December, 2013 after she made an error in a “station audit” and about which Dimitri became angry.  She says that:

   Sometimes when I will give him my papers for review, he will be very insultaive (sic) of my English.  He will say you have studied English or you have learnt it only after coming to Australia many times, even if he has understood what I am saying, just to insult me he will say I don’t understand what you are saying.  There were no issues with my English prior to Dec 2013.

10. Ms Sareen says that “one day” after she had an altercation with Dimitri she had a meeting with a person called Diana and she told Diana about her experiences with Dimitri.  She told Diana that “my body is going through changes as well and I please cannot take it”.  Ms Sareen asked Diana to give her a transfer to some other Department in Queensland Rail.

11. Ms Sareen says that after she spoke to Diana, and although she does not say how long after, Dimitri put her on a performance improvement plan which “came with a threat, threat of Disciplinary action”.  The review also came with a “timeline” which Ms Sareen thought was unrealistic.  Ms Sareen says that on the advice of a doctor she went on unpaid leave for most of the period in the months of May – June, 2013.

These proceedings

1. When the application came before me for its first court date on 21 November 2016, I directed that Ms Sareen file and serve a statement of claim in respect of her claim.  The basis of her claim was not clear from the application and the documents attached to it.  The directions required the statement of claim to set out “all claims and specify whether the claims are of direct discrimination, indirect discrimination or both.”  The respondent foreshadowed an application to summarily dismiss Ms Sareen’s claims. 

2. On 26 January, 2017 Ms Sareen filed a document which purports to be a statement of claim.  It is relatively brief and I set it out in full (faithfully reproduced):

   This claim in this proceeding is made in reliance on the following facts:

   l. The Plaintiff, Indu Sareen is a qualified Chartered Accountant and Certified Internal Auditor from Institute Of Internal Auditors of Australia. She had 25 years of work experience as an auditor when the incident happened.

   2. She was working with Queensland Rail as Senior Internal Auditor

   3. She was awarded the “Best Auditor” award, which supplements her skills and capabilities to meet the expectation of her role.

   4. In July 2012, just after Dimitri Constantanious joined he had put plaintiff, Indu Sareen on Performance Improvement Plan. Performance improvement plan was not supported by QR’s performance management policy and the requirements with regard to Performance Improvement Plan (PIP), mentioned by Department Of Justice. As per QR’s performance management policy, employee can be put on PIP only if employee has not met the required KPI’s for 2 consecutive quarters. Plaintiff, lndu was put on PIP just within few weeks of Dimitri joining as a Manager. As per Department of Justice's website employee can be put on PIP, only after the cause have been identified as to why employee is not able to meet KPI’s and proper plan is developed to help employee achieve those skills and meet the expectation of the role.

   Still, Plaintiff, Indu Sareen felt that to maintain the job and her professional reputation, it is important not to get into argument, listen to the manager and do what he wants. Dimitri’s assessment was “ Indu is a role model for Internal Audit team”,

   4. End of 2013, Indu was not keeping very well and Manager Dimitri, again starting putting unreasonable work loads on her. He started insulting her in front of everyone. Would make undesirable comments on her English language. Because of her health’s issues, combined with the threat of disciplinary action, Indu felt that the resignation from the job is the best option at that time.

   The plaintiff claims the following relief:

   1. She wants her job back.

   2. Compensation for reputational damage: I was working as a Senior Auditor, resigned looked for a job, first question everyone would ask will be why did you leave and why are you again looking for a job as Senior Auditor.

   3. Compensation for psychological damages

   I have still not recovered from the event. There is a feeling, a weird feeling which pulls my life back. I have to remind myself and cheer up to get over the incident, come out of that vague feeling and try to live life. More than 2 years have passed in this kind of situation.

   (Decided case reference

   Harris v State of Queensland {2014] QDC 35
   Long SC, DCJ

   28 February 2014

   Liability was admitted by the employer, but a psychiatric injury, which arose after the physical workplace Injury, led to the trial to judge the amount of damages).

   4. Damage to my left eye_ My left eyelid has dropped down because of stress tension and anxiety.

   5. Compensation for financial damages on sale of 2 houses arising out of my mental condition ( $200,000 )

   6. Period of 6 months I was sitting at home without job ( $5500 X6 ).

   7. Reduction in salary because of the circumstances in which I had to leave.

   Once the damages have been agreed in principal, I will get the actuary, to assess the amount of the above damages. Basically, from a normal smooth running car, my life has become an accidental vehicle, who needs a push to run.

3. As Mr Williams, who appeared for the respondent pointed out, Ms Sareen does not pursue a claim arising out of either the Racial Discrimination Act 1975 (Cth) or the Sex Discrimination Act 1975 (Cth).  The claim is one based upon disability discrimination alone.  In oral argument, Ms Sareen did not advance her claims any further than those that were set out in her complaint to the Human Rights Commission and in her statement of claim.

Disability discrimination

1. Relevantly, the Disability Discrimination Act provides:

   disability, in relation to a person, means:

   (a)  total or partial loss of the person’s bodily or mental functions; or

   (b)  total or partial loss of a part of the body; or

   (c)  the presence in the body of organisms causing disease or illness; or

   (d)  the presence in the body of organisms capable of causing disease or illness; or

   (e)  the malfunction, malformation or disfigurement of a part of the person’s body; or

   (f)  a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

   (g)  a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

   and includes a disability that:

   (h)  presently exists; or

   (i)  previously existed but no longer exists; or

   (j)  may exist in the future (including because of a genetic predisposition to that disability); or

   (k)  is imputed to a person.

   …

   5  Direct disability discrimination

   (1)  For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

   (2)  For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

   (a)  the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

   (b)  the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

   (3)  For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

   6  Indirect disability discrimination

   (1)  For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

   (a)  the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

   (b)  because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

   (c)  the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

   (2)  For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

   (a)  the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

   (b)  because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

   (c)  the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

   (3)  Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

   (4)  For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

   …

   15  Discrimination in employment

   (1)  It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:

   (a)  in the arrangements made for the purpose of determining who should be offered employment; or

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

   (c)  in the terms or conditions on which employment is offered.

   (2)  It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:

   (a)  in the terms or conditions of employment that the employer affords the employee; or

   (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

   (d)  by subjecting the employee to any other detriment.

2. To succeed Ms Sareen must identify a disability (within the extended meaning of that term) because of which, she alleges, the respondent’s officers took the impugned conduct against her.  However, she does not do so.  At best her statement of claim identifies that she was suffering from “heath issues” without descending into details about those issues.  I asked Ms Sareen about those health issues in argument:

   HIS HONOUR:   Yes, but what is the disability?

   MS SAREEN:   Sir, my body was going through the changes.  It’s under clause 3.  It’s only last night.  I was ‑ ‑ ‑

   HIS HONOUR:   It’s under clause 3.

   MS SAREEN:   Sir, I will specify the section ‑ ‑ ‑

   HIS HONOUR:   Clause 3 of what?

   MS SAREEN:   Sir, it’s under – it’s one of the requirement – when I took the advice from woman’s health as well, they said “hormonal changes and body changes”, and it’s a fact ‑ ‑ ‑

   …

   HIS HONOUR:   Well, the order that I made required you to specify it, set out the facts upon which your claim is made, the acts of disability discrimination, whether it’s direct or indirect.  What do you say the disability was that you were suffering from?

   MS SAREEN:   Sir, my body was going through the changes.  I felt that I’m going to have paralysis.  I got up, and it has come in my spine .....  MRI as well.  My cervical has been slightly tilted---

   …

   HIS HONOUR:   And do you say that that came about – that by reason of that the other side – the manager did something because of you – because you had that disability?

   MS SAREEN:   Sir, it was stress ..... it sort of activated the whole thing.  I’m not saying that was only reason.  My body was going through the changes, and the stress and tension – because in 2012 he had put me on performance improvement.  I went through the process.  That time – my health was still fine.  One – every time – I didn’t have the courage to go through that process again and again.  Even I have my self-respect.  As for the performance improvement process – they have to identify the causes as to why an employee is not performing and then address those causes.  They just cannot give me punishment again and again.  “Okay.  You open your mouth.  We will put you on performance improvement”.

3. At best, Ms Sareen identified that her “body was going through the changes”.  She did not explain that any further except to say that she took advice from “woman’s health” and was told that she was experiencing “hormonal changes and body changes”.  Although Ms Sareen did not explain it in terms, it seems that she might be suggesting that she was experiencing menopause or signs of menopause.  To the extent that is her suggestion, it is not immediately apparent that she was suffering from a disability for the purposes of the Act. 

4. Without more, I would be surprised if the matters of which Ms Sareen complains could be properly characterised as a disorder, illness, disease, malfunction, malformation or disfigurement.  She did not suggest that there was any particular symptom from which she suffered that through its manifestation amounted to a disability for the purposes of the Act.  Whilst the definition of disability is wide and it is not inconceivable that “hormonal changes and body changes” might, given the consequences of such changes in a particular case, amount to an illness or disease, I doubt very much that the Legislature envisaged that the changes brought about by menopause could properly be described as a disability for the purposes of the Disability Discrimination Act.

5. But even assuming that Ms Sareen suffered from a disability for the purposes of the Act, she does not identify any direct or indirect discrimination sufficient to give rise to a cause of action under the Act.   She does not allege any act of direct or indirect discrimination that occurred because of any disability that afflicted her. 

6. The material demonstrates that Ms Sareen was put on at least two performance improvement plans during the course of her employment with the respondent. Ms Sareen’s case, however, does not seem to be that she was put on those performance plans because she had a disability. She identifies a reason for the first performance improvement plan. That identified reason does not relate to any claimed disability on her part. Rather, it relates to her not completing assigned work on time. Whilst Ms Sareen says that the implementation of the performance improvement plan was not justified in the circumstances, that is presently not to the point. She does not allege that the acts taken by the respondent and constituted by the performance improvement plan were taken because of any disability on her part. She does not argue that the disciplinary action that was taken against her by the respondent, by its manager, was of itself, an act which offended the Disability Discrimination Act. Nor does she allege that it was an act of indirect discrimination.

1. Ultimately, Ms Sareen resigned her employment.  As she says in her statement of claim “Because of her health’s issues, combined with the threat of disciplinary action, [she] felt that the resignation from the job is the best option at that time.”  She does not suggest that the threat of disciplinary action was made against her because of any disability on her part.  She does not suggest that the disciplinary procedures that she says were threatened against her were threatened because of her health issues, let alone any disability on her part.

2. Moreover, she does not suggest that she informed any person from Queensland Rail, apart from “Diana” on one occasion, that she was suffering any health problems.  There is nothing in Ms Sareen’s claim as articulated in the Commission or in this Court that suggests that Queensland Rail discriminated against her on the basis of any disability on her part.

Disposition

1. Mr Williams for the respondent was at pains to point out that his client did not wish to take advantage of the fact that Ms Sareen was representing herself. Nonetheless, he argues that despite the fact that the applicant is not a lawyer and does not appear to have had any legal assistance it is appropriate to summarily dismiss her application pursuant to s.17A of the Federal Circuit Court Act 1999 and rule 13.10 of the Federal Circuit Court Rules 2001. 

2. Mr Williams argued that there would be no point in permitting Ms Sareen a further opportunity to plead her case because on the facts, which seem to be uncontroversial, no case for disability discrimination can succeed.  I agree.  Ms Sareen does not identify any action taken by the respondent that she alleges was taken because of her disability, even assuming that the matters she identifies amount to a disability for the purposes of the Act.

3. Having regard to the above discussion, I find that Ms Sareen has no reasonable prospect of prosecting her claim for disability discrimination.  Accordingly, it ought to be summarily dismissed pursuant to FCCR 13.10(a).

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 6 October 2017