Singh and Belmont Counselling Clinic Pty Ltd

[2008] WASAT 271

SINGH and BELMONT COUNSELLING CLINIC PTY LTD [2008] WASAT 271

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 271
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:29/2007	Heard:	24, 25 AND 26 JUNE 2008 22 AUGUST 2008
Coram:	MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER) PROF C MULVEY (SESSIONAL MEMBER)	Delivered:	18/11/08
No of pages:	42	Judgment Part:	1 of 1
Result:	Applications dismissed
Category:	B
PDF Version

Parties:	CHARAN JIT SINGH BELMONT COUNSELLING CLINIC PTY LTD GENEVIEVE MILNES
Catchwords:	Discrimination Race Religious conviction Applicant Indian Sikh Whether applicant employed by respondent Credibility of applicant's evidence Finding that the applicant had fabricated documents Tribunal not satisfied employment relationship existed Any different treatment not unlawful discrimination Complaint dismissed Victimisation Whether respondent's complaints to professional body and the police about the applicant's conduct constituted victimisation Finding that complaints did not constitute victimisation within the meaning of the Equal Opportunity Act 1984 (WA) Applications dismissed
Legislation:	Equal Opportunity Act 1984 (WA), s 4, s 5, s 36(1)(a), s 36(1)(b), s 36(1)(d), s 37(2)(d), s 46, s 53(1)(a), s 53(1)(b), s 54(2)(a), s 54(2)(d), s 62, s 67, s 67(1), s 67(1)(a), s 67(1)(f), s 67(2), s 93(1)(b), s 161
Case References:	Nil
Orders	The applications are dismissed.
Summary	The applicant, who was a Sikh born in India, claimed that Belmont Counselling Clinic Pty Ltd unlawfully discriminated against him on the grounds of race and religious conviction in the area of employment. He further claimed that Belmont Counselling Clinic Pty Ltd was vicariously liable for the unlawful conduct of its director, Genevieve Milnes, who he claimed victimised him when he complained to the Commissioner for Equal Opportunity about the discrimination.,The applicant graduated from Curtin University in 2004 with an honours degree in psychology. To obtain registration as a psychologist, he was required by the Psychologists Board of Western Australia to undergo two years supervised practice. In December 2005 he entered into an arrangement with Belmont Counselling Clinic Pty Ltd by which Ms Milnes would supervise his practice. He claimed the arrangement constituted a contract of employment. ,The applicant claimed that, over six months to June 2006 when the arrangement ended, Ms Milnes subjected him to constant discrimination by making offensive remarks about his race and his religion, making him perform menial cleaning work, not allocating clients to him, refusing him access to computers and telephones and refusing to pay him. He further claimed that she victimised him in various ways including threatening him and making complaints to the Psychologists Board of Western Australia and the police about him.,Belmont Counselling Clinic Pty Ltd denied there was an employment relationship with the applicant.,The Tribunal found much of the applicant's evidence exaggerated and implausible. It was not satisfied that he was a credible witness. It further found that he had fabricated a number of documents he had submitted to the Tribunal as evidence of an employment relationship. ,The Tribunal found the applicant was on an unpaid, supervised placement at Belmont Counselling Clinic Pty Ltd for the purposes of meeting Psychologists Board of Western Australia requirements for registration as a psychologist. It did not accept that Belmont Counselling Clinic Pty Ltd agreed to pay him or that an employment relationship existed.,As there was no employment relationship, the conduct complained of could not constitute unlawful discrimination in employment within the meaning of the Equal Opportunity Act 1984 (WA). It was therefore not necessary to deal with the incidents of alleged discrimination in detail. The Tribunal dismissed the application.,In relation to the complaint of victimisation, the Tribunal was not satisfied that Ms Milnes threatened him or acted in other ways complained of. It was not satisfied that her conduct in lodging complaints with the Psychologists Board of Western Australia and the police constituted victimisation within the meaning of s 67(1) of the Equal Opportunity Act 1984 (WA). It followed that Belmont Counselling Clinic Pty Ltd was not liable for any unlawful conduct. The Tribunal dismissed the applications.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : SINGH and BELMONT COUNSELLING CLINIC PTY LTD [2008] WASAT 271 MEMBER : MS J TOOHEY (SENIOR MEMBER)

MS F CHILD (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)

HEARD : 24, 25 AND 26 JUNE 2008

22 AUGUST 2008

DELIVERED : 19 NOVEMBER 2008 FILE NO/S : EOA 29 of 2007

EOA 46 of 2007
EOA 74 of 2007

BETWEEN : CHARAN JIT SINGH

Applicant

AND

BELMONT COUNSELLING CLINIC PTY LTD
GENEVIEVE MILNES
Respondents

Catchwords:

Discrimination - Race - Religious conviction - Applicant Indian Sikh - Whether applicant employed by respondent - Credibility of applicant's evidence - Finding that the applicant had fabricated documents - Tribunal not satisfied employment relationship existed - Any different treatment not unlawful discrimination - Complaint dismissed - Victimisation - Whether respondent's complaints to

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professional body and the police about the applicant's conduct constituted victimisation - Finding that complaints did not constitute victimisation within the meaning of the Equal Opportunity Act 1984 (WA) - Applications dismissed

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 5, s 36(1)(a), s 36(1)(b), s 36(1)(d), s 37(2)(d), s 46, s 53(1)(a), s 53(1)(b), s 54(2)(a), s 54(2)(d), s 62, s 67, s 67(1), s 67(1)(a), s 67(1)(f), s 67(2), s 93(1)(b), s 161

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Applicant : Mr A Macdonald
Respondents : Ms C Tsang

Solicitors:

Applicant : Commissioner for Equal Opportunity
Respondents : Downings Legal

Case(s) referred to in decision(s):

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant, who was a Sikh born in India, claimed that Belmont Counselling Clinic Pty Ltd unlawfully discriminated against him on the grounds of race and religious conviction in the area of employment. He further claimed that Belmont Counselling Clinic Pty Ltd was vicariously liable for the unlawful conduct of its director, Genevieve Milnes, who he claimed victimised him when he complained to the Commissioner for Equal Opportunity about the discrimination.

2 The applicant graduated from Curtin University in 2004 with an honours degree in psychology. To obtain registration as a psychologist, he was required by the Psychologists Board of Western Australia to undergo two years supervised practice. In December 2005 he entered into an arrangement with Belmont Counselling Clinic Pty Ltd by which Ms Milnes would supervise his practice. He claimed the arrangement constituted a contract of employment.

3 The applicant claimed that, over six months to June 2006 when the arrangement ended, Ms Milnes subjected him to constant discrimination by making offensive remarks about his race and his religion, making him perform menial cleaning work, not allocating clients to him, refusing him access to computers and telephones and refusing to pay him. He further claimed that she victimised him in various ways including threatening him and making complaints to the Psychologists Board of Western Australia and the police about him.

4 Belmont Counselling Clinic Pty Ltd denied there was an employment relationship with the applicant.

5 The Tribunal found much of the applicant's evidence exaggerated and implausible. It was not satisfied that he was a credible witness. It further found that he had fabricated a number of documents he had submitted to the Tribunal as evidence of an employment relationship.

6 The Tribunal found the applicant was on an unpaid, supervised placement at Belmont Counselling Clinic Pty Ltd for the purposes of meeting Psychologists Board of Western Australia requirements for registration as a psychologist. It did not accept that Belmont Counselling Clinic Pty Ltd agreed to pay him or that an employment relationship existed.

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7 As there was no employment relationship, the conduct complained of could not constitute unlawful discrimination in employment within the meaning of the Equal Opportunity Act 1984 (WA). It was therefore not necessary to deal with the incidents of alleged discrimination in detail. The Tribunal dismissed the application.

8 In relation to the complaint of victimisation, the Tribunal was not satisfied that Ms Milnes threatened him or acted in other ways complained of. It was not satisfied that her conduct in lodging complaints with the Psychologists Board of Western Australia and the police constituted victimisation within the meaning of s 67(1) of the Equal OpportunityAct1984 (WA). It followed that Belmont Counselling Clinic Pty Ltd was not liable for any unlawful conduct. The Tribunal dismissed the applications.

Background

9 Three complaints pursuant to the Equal Opportunity Act 1984 (WA) (EO Act) are before the Tribunal. The applicant, Charan Jit Singh, complains of:

i) discrimination on the ground of race in employment contrary to s 36(1)(a), s 36(1)(b) and s 36(1)(d), and s 37 (2)(d);

ii) discrimination on the ground of religious conviction in employment contrary to s 53(1)(a) and s 53(1)(b) and s 54(2)(a) and s 54(2)(d); and

iii) victimisation contrary to s 67(1)(a) and s 67(1)(f).

10 The first complaint is of discrimination on the grounds of race and religious conviction in employment and is brought against Belmont Counselling Clinic Pty Ltd (BCC).

11 The second and third complaints are of victimisation and are brought against Genevieve Milnes, one of two directors of BCC, and against BCC on the basis that it is vicariously liable for her unlawful conduct by virtue of s 161 of the EO Act. They are essentially the same complaint but concern alleged victimisation at different times.

12 The Commissioner for Equal Opportunity has referred the complaints to the Tribunal pursuant to s 93(1)(b) of the EO Act.

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13 At a hearing on 24, 25 and 26 June 2008 the Tribunal heard evidence from Mr Singh; Ms Milnes; her sister, Bronwyn Claughton, practice manager for BCC; Halinka Healy and Josephine Caccetta, registered psychologists. It had before it extensive documentation submitted by the parties including witness statements. Parties then filed written closing submissions.

The issues

14 The issues to be determined in the discrimination complaints are:

i) whether BCC unlawfully discriminated against Mr Singh by treating him less favourably on the ground of his race or religion, or both, than it treated, or would have treated, a person of a different race or religion -

a) in the terms or conditions of his employment; or

b) by subjecting him to any other detriment in employment;


ii) whether Mr Singh suffered any loss or damage by reason of any discrimination and, if so, the nature and extent of that loss or damage; and

iii) if the complaints are upheld, what orders the Tribunal should make.

15 The issues to be determined in the victimisation complaints are:

i) whether Ms Milnes victimised Mr Singh within the meaning of s 67 of the EO Act by threatening, or actually subjecting him to, any detriment;

ii) if so, whether BCC is vicariously liable for her conduct;

iii) whether Mr Singh suffered any loss or damage by reason of any victimisation and, if so, the nature and extent of that loss or damage; and

iv) if the complaints are upheld, what orders the Tribunal should make.

16 Other than that Ms Milnes and Mr Singh agreed, in December 2005, that he would undertake supervised practice with her for the purpose of
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obtaining registration as a psychologist, almost every fact in each complaint is in dispute.

17 Mr Singh asserts that he entered into a contract for services with Belmont Counselling Clinic Pty Ltd by which he would be paid for counselling and other services. Belmont Counselling Clinic Pty Ltd denies such an arrangement existed. It says the arrangement was in the nature of a vocational placement and not within the meaning of 'employment' in the EO Act.

18 Parties agree that a threshold issue in the discrimination complaints is whether Mr Singh was employed by BCC; unless he can establish that he was an employee within the meaning of the EO Act, his complaints of discrimination must fail.

19 It is not in dispute that, if Mr Singh was engaged by Ms Milnes in the manner and on the terms that he claims, the arrangement would constitute employment for the purposes of the EO Act.

20 The sole area in which Mr Singh alleges discrimination is that of employment. He does not assert that the respondent provided him with a service within the meaning of s 46 or s 62 of the EO Act, and that question is not before the Tribunal.

The meaning of employment in the EO Act

21 Employment is defined in s 4 of the EO Act as including:

(a) part-time and temporary employment;

(b) work under a contract for services; and

(c) work as a State employee.

Mr Singh's claims regarding employment by BCC

22 Mr Singh is an Australian citizen who was born and raised in India and migrated to Australia in the mid-1990s. He obtained qualifications in yoga, pharmacy and computer science in India, none of which is recognised in Australia. He is a practising Sikh and wears a turban.

23 In June 2004 Mr Singh completed a Bachelor of Science degree with honours in psychology at Curtin University by virtue of which he became a provisionally registered psychologist (now known as a 'conditionally registered psychologist'). To qualify as a registered psychologist, he was required by the Psychologists Board of Western Australia (PBWA) to

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undergo two years of supervised practice in accordance with various requirements including a supervision plan and progress assessments. Graduates must make their own arrangements for supervised practice under a registered psychologist.

24 Mr Singh had been employed in various positions since coming to Australia and was working as a taxi driver after completing his degree. In December 2005 he telephoned Ms Milnes whom he had heard of through a Christian radio program. He says he told her he was looking for supervised paid work as a provisional psychologist and they arranged to meet.

25 Mr Singh claims that, at their first meeting, he showed Ms Milnes his qualifications, certificates, academic transcript and so on; they discussed award rates, how much he should be paid and the paperwork necessary for employment and supervision. He says Ms Milnes agreed to employ and supervise him full­time for two years from 9 December 2005 with the possibility of an extension if he performed satisfactorily.

26 Mr Singh commenced work at BCC on 9 December 2005. He claims that, on that day, he and Ms Milnes discussed his conditions of employment in detail and agreed on his working conditions including pay. She assessed his knowledge and competence and said he was 'one of the best counsellors' she had ever met; she wanted to hire him 'for good' and he could start counselling immediately; he was to have his own consulting room (even though others had to share a room). He says Ms Milnes signed and gave him a Job Description form setting out his responsibilities and conditions of employment from that date.

27 Mr Singh says that, on 15 December 2005, he and Ms Milnes signed a Form 17: Supervision Agreement by which supervision would commence from that date and he would be employed full-time for 40 hours per week. Ms Milnes also signed a Form 4: Certificate of Intention to Employ and lodged both documents with the PBWA.

28 Mr Singh says that, at the end of December 2005, he and Ms Milnes prepared and signed a Six Monthly Supervision Plan which, among other things, confirmed his rate of pay for seeing clients and 'all other additional work at the clinic'.

29 Copies of these forms are before the Tribunal. The authenticity of most is in dispute.

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30 On 12 March 2006 Mr Singh went to India to visit his family. He returned on 13 April 2006. While he was there, Ms Milnes sent him an email listing concerns about his professional conduct, saying she did not wish to continue supervising him, suggesting he look for a full-time job 'somewhere' so that the pressure would be off him to earn money, and that she was terminating their arrangement. Mr Singh denies receiving this email. In any event, he returned to BCC on 13 April 2006 and remained there until 14 June 2006.

31 Mr Singh claims that, over the six months he was at BCC, Ms Milnes subjected him to racial and religious taunts, allocated him less psychology work than others and eventually no work at all, made him perform menial jobs unrelated to his supervised practice, and, other than one small payment, refused to pay him.

32 Ms Milnes emphatically denies an employment relationship was discussed or entered into with Mr Singh at any time. She says she made clear from their first meeting that she was offering him a six­month, unpaid supervised placement at BCC; she specifically told him he would not be paid but nor would he be charged for supervision. She alleges that Mr Singh has fabricated a number of documents produced in support of his clams.

Evidence about payment of provisional psychologists

33 Mr Singh maintains that provisional psychologists are commonly paid employees while under supervision and says that, in 2005, there were some 140 provisional psychologists, most in paid positions.

34 In his written statement of evidence, Mr Singh claims that, 'under the Australian Industrial Relations Commission, graduate psychologists have an award and should be paid'. Further that, according to the national Australian Psychology Society (APS), all provisional psychologists should be paid and wages and award rates are published on the APS website.

35 In oral evidence Mr Singh claimed he took a copy of the award to his first meeting with Ms Milnes and showed it to her. Under cross­examination he conceded he had not mentioned this in his written statement. He could not explain why he was unable to produce a copy of the award or the relevant page from the APS website to the Tribunal other than to say that the award is a 'really obvious fact'. He conceded that information on the APS website makes clear that voluntary work may still count for supervision and registration purposes.

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36 Ms Milnes denies any discussion with Mr Singh about award rates at their first meeting and she disputes that any industrial award or law obliged her to pay Mr Singh. She says she paid $10,000 for her own supervision and Mr Singh conceded in oral evidence that some provisional psychologists have to pay for their supervision.

37 The Tribunal notes that PBWA documents refer to 'employment' but it is clear that the term is used interchangeably with 'work' in a broad sense because the documents make clear that paid employment is not required in order to meet PBWA requirements for supervision.

38 Information from the PBWA (Supervision Guidelines for Provisionally Registered Psychologists) make no reference to award rates or salary of any kind.

39 Information before the Tribunal from the School of Psychology at Curtin University of Technology describes requirements for registration in Western Australia and advises:

Obtaining supervision can be difficult. You may be fortunate to have a job in which your employer can provide supervision, but increasingly people need to pay for supervision.

40 The Tribunal is satisfied, on the evidence, that a position that meets the PBWA requirements for supervision may be paid or unpaid. Clearly that does not preclude any person from being paid and it does not preclude the possibility that BCC agreed to pay Mr Singh.

Claims about agreed salary

41 At the time in question, Mr Singh was one of several provisional and registered psychologists at BCC, most of whom were paid from some point after they started. As far as he is aware, most of the others were contracted psychologists. The usual arrangement was that BCC would pay them 50% of what it charged clients. (Rates were referred throughout the evidence as 'hourly' and 'per session' but any difference is not material).

42 Mr Singh claims that, on 9 December 2005, Ms Milnes agreed to pay him $60 per hour, being 50% of the fee charged by BCC, for seeing clients and $25 per hour for any related administrative work. He claims she agreed he could charge up to $180 for additional work in the form of home visits, of which he would receive 50%.

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43 Ms Milnes denies there was at any time an agreement to pay Mr Singh for his work. She gave evidence that she never agrees to pay a provisional psychologist who has come straight from university because there is little practical content to their studies; she assumes they have no counselling experience or skills unless they are already an accomplished counsellor, in which case they would be paid for counselling only, and even then, usually not until their second or third month. She says such cases are rare and Mr Singh was not one of them.

44 Ms Milnes says that, if a provisional psychologist becomes proficient and is contributing to BCC, she may enter into an agreement at a later stage to pay them $20 to $30 for each counselling session they conduct; she did not enter into such an agreement with Mr Singh at any time.

45 In her written witness statement, Ms Milnes says she always makes it clear at the initial interview that provisional psychologists do not receive remuneration while on their six­month placement at BCC. She says that, following successful completion of six months' supervision, she may offer them the opportunity to continue their placement. She further states that 'no provisionally registered psychologists are engaged as employees at BCC'; those 'who have been participating in supervision placements for an extended period of time and have entered an arrangement to receive remuneration may be paid in the context of an independent contractor relationship'.

46 Contrary to Ms Milnes' written statement, BCC records obtained under an order of the Tribunal establish that some provisional psychologists are paid for their work, sometimes within a week or two of starting. Josephine Caccetta, a provisional psychologist in January 2006, was paid. Rehza Tan, also a provisional psychologist, was paid around the same time. Angela Papalia, also a provisional psychologist, was paid in May 2006 for work dating back to approximately one week after she started in February 2006.

47 Ms Milnes does not dispute that each was paid but maintains none was engaged on the basis of payment from commencement. In Ms Papalia's case, Ms Milnes felt she had been working very well and should be back­paid.

48 In any event, Ms Milnes says, she has never agreed to pay any provisional psychologist $60 an hour which is the sort of rate commanded by a six­year trained psychologist with a masters degree in clinical psychology who has been at BCC for a number of years. Further, she

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does not engage any psychologist or counsellor to do administrative work and menial chores.

49 This last claim is contradicted by Ms Caccetta, who was paid for reception duties. However, Ms Milnes' evidence about rates of payment is borne out in invoices submitted by Ms Caccetta and Ms Papalia at the material time, copies of which are before the Tribunal.

50 In January 2006, Ms Caccetta was a provisional psychologist. She became fully registered in February 2006. Her invoice for January 2006 shows BCC paid her $30 or $40 for each of 11 counselling sessions. Her invoice for February 2006 shows she was paid between $20 and $50 per session. Her invoices for the following months to June 2006 show she was usually paid around $50 per session, the highest being $55 per session.

51 Invoices submitted by Ms Papalia, for February to April 2006 show claims for 36 sessions at the rate of $25 per session. She was paid the same rate for subsequent sessions until June 2006 when she charged $30 per session.

52 The Tribunal heard that Dr Ashley Frew, a registered psychologist with at least six years experience, was contracted by BCC and charged at a rate of $120 per session, of which she received $60.

53 Mr Singh does not dispute this evidence but maintains that each person at BCC was different and Ms Milnes agreed to pay him $60 per session for counselling work because of his exceptional experience and because he speaks five languages.

Claims about payment of $1,085 to Mr Singh

54 In March 2006 BCC paid Mr Singh the sum of $1,085 which he claims was part-payment for salary owed to him and evidence of their employment relationship. Copies of an invoice from Mr Singh and what purports to be a Salary Pay Slip are before the Tribunal. The authenticity of the Salary Pay Slip is in dispute.

55 Mr Singh says that, in January 2006 when he had not been paid, he approached Ms Milnes and her sister, Bronwyn Claughton, who was BCC's practice manager. He says Ms Milnes told him she was under acute financial hardship because she had started a new business in Kalgoorlie; she insisted she would pay him and asked him to trust her.

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56 Mr Singh says that he had still not been paid by February 2006 and his family was under considerable financial stress. Around this time he noticed he was being allocated fewer clients than Ms Papalia who had not long started at BCC.

57 Ms Milnes denies Mr Singh approached her about his pay. She concedes that an email she sent him in April 2006 states 'I felt pressured by you all the time regarding money' but says this referred only to the fact that Mr Singh was always talking about money and 'got excited' about it.

58 Ms Milnes says that, in March 2006, Mr Singh told her his father in India was dying and asked her to give him some money. Mr Singh denies mentioning that his father was ill and says he told Ms Milnes he had to go to India to sort his father's will. This is undermined by an email dated 30 March 2006 from Mr Singh to Ms Milnes in which he tells her:

My father's health is stable but still critical.

59 Ms Milnes says that, after much deliberation, she decided to give Mr Singh $1,000 to help him travel to India to see his father and she asked Ms Claughton to arrange payment. However, Ms Claughton thought it unfair to give him a gift when they did not give gifts to others and suggested they equate the amount to something Mr Singh had done for BCC. They worked out how much he would have received had he been paid for the sessions he did from December 2005 to February 2006 and arrived at an amount of $1,085. They asked Mr Singh to submit an invoice for that amount which he did on 8 March 2006. Ms Milnes denies the payment had anything to do with an agreement to pay Mr Singh for his services.

60 Ms Claughton supports Ms Milnes' evidence. She gave evidence she thought the payment needed to be 'legitimate' and suggested it be based on a calculation of clients Mr Singh had seen. Ms Milnes asked her to get the MYOB (accounting) reports, see how many clients Mr Singh had seen, and pay him $25 a client. Ms Claughton then asked him to generate an invoice and paid the money into his bank account. She did not issue him with the Salary Pay Slip or any confirmation of the payment.

Mr Singh's claims of discrimination on grounds of race and religious conviction

61 Mr Singh alleges that, throughout his employment with BCC, Ms Milnes unlawfully discriminated against him on the grounds of his race and religious conviction. In particular, she or Ms Claughton:

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i) allocated all new clients to another provisionally registered psychologist and none to him;

ii) apart from one occasion, did not pay him the fees or payments he was entitled to;

iii) asked him for proof of his Australian citizenship and asked how long he had been in Australia;

iv) ordered him on more than 10 occasions to take off his turban, which he would refuse to do;

v) every day made offensive comments and jokes about the Sikh religion, and gave him more than 50 articles about Sadhu Singh, a Sikh holy man;

vi) told him that no-one at the clinic understood what he was saying and that clients asked who was the man in the turban and why was he practising at her clinic;

vii) required him every day to clean the clinic including vacuuming, cleaning the kitchen, bathroom and toilet, and putting out rubbish, sometimes in front of clients;

viii) required him to rearrange and clean the outdoor shed and to work in the back storeroom, organising client files and records, in oppressive heat, and refused him tea­breaks;

ix) required him to do heavy lifting jobs around the clinic including lifting boxes weighing as much as 32 kilograms;

x) required him to make cups of tea and coffee for staff and clients throughout the day and did not allow him to take 30 minute lunchbreaks or any tea­breaks;

xi) did not give him a password for access to the computer network and did not allow him to use the telephones at all;

xii) used him as a driver to drop her at the airport;

xiii) invited all BCC employees to the Christmas party except Mr Singh; and

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xiv) threatened him when he indicated he would complain about his treatment.

62 BCC denies that Mr Singh was treated as he claims or that any treatment constituted unlawful discrimination or victimisation. It does not dispute that he was allocated fewer clients than others, or that others were paid (after a time) whereas he was not, but it says any different treatment was by reason of his lesser performance and not his race or religion.

63 For the reasons set out below, the Tribunal is not satisfied that Mr Singh was employed by BCC within the meaning of the EO Act. It is therefore not necessary to deal with the claims of discrimination in detail except where they are relevant to whether he was employed or to the victimisation claim.

Loss and damage claimed

64 Mr Singh says he became very stressed and anxious during his employment with BCC because of Ms Milnes' conduct and because he was not being paid. He says he experienced significant financial hardship and had to borrow money from relatives in order to provide for his family.

65 Mr Singh's placement with BCC ended on 14 June 2006. He obtained a new placement from 15 June 2006 where he says he has not experienced any problems on the ground of his ethnic background or religion. He claims an amount of $22,335 for unpaid salary, general damages and an apology.

Ms Milnes' concerns about Mr Singh

66 Ms Milnes gave evidence that she had concerns about Mr Singh's conduct and counselling abilities from 'fairly early in the piece'. In particular:

i) he would come to work late without explanation and she believed he had doctored the appointment book after the event to make it look like he was arriving on time;

ii) he would 'run for the phone' and she felt he was 'grabbing' clients for himself;

iii) she was suspicious of his reasons for staying late at the clinic after she had left, and she wondered what he was doing, but she felt it was 'not quite the done thing' to require him to leave;

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iv) she had concerns about his counselling abilities but felt that his psychology degree would give him a sufficient level of knowledge to sit with clients; and

v) by the end, she considered him 'manipulative and unethical'.

67 Despite these concerns, Ms Milnes allowed Mr Singh to see clients. She continued to allow him to see some clients after his return from India even though she was concerned about his lack of professionalism and the possible effect on clients' wellbeing. She conceded in oral evidence that it was foolish to do so but says she is a soft­hearted person and she was gullible.

68 Ms Milnes says she sought to terminate Mr Singh's placement because of his professional incompetence and 'cultural insensitivities' and not on the ground of his race or religion; she relented when he begged her to let him complete the six­month period of supervision.

69 Ms Milnes denies subjecting Mr Singh to racial or religious discrimination. As noted above, because the Tribunal is not satisfied that an employment relationship existed, it is not necessary to deal with Ms Milnes' response to the claims of discrimination except where relevant to matters in issue.

Evidence of Bronwyn Claughton

70 Ms Claughton is Ms Milnes' sister and was the practice manager for BCC from early 2004 to around March 2008. She generally worked four days a week and occasionally five. Her duties included assisting Ms Milnes and the placement students and psychology registrars.

71 Ms Claughton told the Tribunal that, after a student had seen some clients under Ms Milnes' close supervision, Ms Milnes might come to an arrangement to pay them. When this happened, Ms Milnes would set the rate and advise Ms Claughton; the student would submit an invoice to Ms Claughton at the end of the month for the agreed rate; she would check it and make the payment direct into their account.

72 Ms Claughton maintained that Ms Milnes would never have agreed to pay Mr Singh $60 per session. She cited Dr Ashley Frew, a registered psychologist with several years' experience who was paid $60 a session. Ms Claughton says no clinical psychologists, registered psychologists or provisional psychologists are paid for doing non-sessional work and there

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is no way that Mr Singh would be paid $25 an hour for non­sessional work. The Tribunal notes that in fact Ms Caccetta was paid for some administrative work.

73 Ms Claughton disputes Mr Singh's claims about cleaning and related tasks. She gave evidence that she did the majority of the cleaning although, from time to time, she would ask others to take on particular tasks; on occasions, she would ask whoever was around or free to help with the cleaning or take out the rubbish. She denies that Mr Singh did any more cleaning than anyone else.

74 Ms Claughton gave evidence that she had heard Mr Singh answering the telephone and say things like, 'We can fix you'; 'I am a very experienced counsellor'; 'I am very, very good'; 'I have worked with Mother Theresa'; and 'I have extensive experience'. Ms Claughton said she became alarmed because she thought such comments were inappropriate and she told Ms Milnes about them. She told the Tribunal she also observed Mr Singh making appointments for clients with himself, rather than another counsellor, which was highly unusual.

75 Ms Claughton denies there was ever an issue with Mr Singh wearing a turban and she denies saying to anyone that Mr Singh would get more clients if he were not wearing it.

Evidence of Halinka Healy

76 Ms Healy gave evidence on behalf of Mr Singh. She obtained a masters degree in psychology in September 2005 from Edith Cowan University. After graduating, she looked for a placement to gain clinical experience. She was looking for paid work eventually but was prepared to do voluntary work in the meantime. In November 2005 she started work experience at BCC, counselling for one day each week. The arrangement was that she would work for at least three months; she would not be paid; she would do initial 'book-in' sessions with clients before they saw a counsellor.

77 Ms Healy gave evidence that Ms Claughton told her that, if she did well at BCC, she could be offered a job there.

78 After Mr Singh started in December 2005, Ms Healy would see him each Thursday at times such as breaks in appointments and lunchtime. She recalled an occasion towards the end of December 2005 when he had a meeting with Ms Milnes, her husband Peter, Ms Claughton and another counsellor. After the meeting, Mr Singh told her that they had been

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discussing his employment and how he could help BCC by obtaining a government contract for testing taxi driver applicants, and visiting doctors and others to obtain referrals.

79 Ms Healy says she was in fact allocated very few clients and so she arranged with Ms Claughton to do other tasks including cleaning, organising the library, entering information on the database, answering the telephone and making tea and coffee.

80 Around February 2006 Ms Healy noticed Mr Singh was also being allocated fewer clients and was spending more time on chores such as filing, cleaning, washing dishes, taking out rubbish and lifting heavy boxes than he spent with clients. As far as Ms Healy knew, no other counsellor was expected to do these chores.

81 Ms Healy says Mr Singh brought up the subject of pay 'every time' she was at BCC and said he had a contract with Ms Milnes for payment of 50% of the fees charged to his clients. Around January or February 2006, he told Ms Healy he was not being paid and said he raised this with Ms Milnes at least once or twice a week.

82 Ms Healy gave evidence that she recalls Ms Papalia telling Mr Singh and her, in February 2006, that she had not been paid either. Ms Healy says she took this to mean that Ms Papalia expected to be paid but she does not know what the arrangement was between Ms Milnes and Ms Papalia regarding payment.

83 Ms Healy decided to leave BCC in early March 2006 because she was not getting the clinical experience she had been promised by Ms Milnes and because of what she considered to be other (unspecified) 'unethical practices at BCC'.

84 Ms Healy gave evidence that, in June 2006, shortly after he left BCC, Mr Singh showed her his 'original written agreement' with BCC which stated he would be paid 50% of client fees and an hourly rate of $25 for other work. It was signed by Ms Milnes in a blue pen. It is not clear what document Ms Healy refers to and Mr Singh has not produced it to the Tribunal. We have no reason to doubt Ms Healy but, in the absence of the document, we place no weight on her evidence about it, particularly given our findings (below) that Mr Singh has fabricated a number of documents submitted in evidence.

85 Ms Healy's evidence tends to support Mr Singh's claims about comments made by Ms Claughton about his turban. For instance, she

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says Ms Claughton once said to her that he would be given more clients if he removed his turban, and once or twice Ms Claughton discussed Mr Singh's religious beliefs with her and expressed the opinion that his view that Sikhism encompasses all religions including Christianity was 'ridiculous'.

86 Ms Healy conceded in cross­examination that much of what she knew about Mr Singh's claimed treatment was based on what he had told her.

Evidence of Josephine Caccetta

87 Ms Caccetta gave evidence for the respondent. She completed a bachelor degree in psychology in 2001 and a post-graduate diploma in psychology in 2002. She completed her two year supervision period in February 2006 and became a registered psychologist. She completed her two years supervised practice partly at BCC and partly at another organisation.

88 Ms Caccetta gave evidence that, around March 2003, she had completed a post-graduate diploma in psychology and was interested in obtaining counselling work. Having identified BCC as a Christian counselling centre, she met with Ms Milnes who offered her work experience starting immediately. She started work on an unpaid work experience basis two days each week. Her work involved talking to other psychologists at BCC, learning how to do the accounts, light cleaning jobs, scoring psychology assessments, doing book-in sessions and making up files for new clients. She gave evidence that it was hard for graduate psychologists to find supervision and she took this arrangement in order to get supervision in any way she could.

89 In about August 2003, Ms Milnes agreed to pay Ms Caccetta for the clients she counselled. Over the time she was at BCC, the fee charged to the clients changed as she gained more experience. She received 50% of what the client was charged, meaning she would receive sometimes $20.00, sometimes $40.00.

90 Around the end of 2004 Ms Milnes asked Ms Caccetta if she would do reception duties and she was paid for this.

91 Ms Caccetta gave evidence that she met Mr Singh sometime towards the end of her two year supervision; she remembers meeting him only a couple of times. He did not mention to her that he had any complaints

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about Ms Milnes or BCC. She could not recall discussing her agreement for payment with him.

Documents submitted by Mr Singh as evidence of employment relationship

92 Mr Singh has submitted a number of documents to the Tribunal that he says evidence his employment relationship with BCC. The authenticity of most of the documents is in dispute. He has also submitted what he claims to be contemporaneously notes of various incidents.

93 Mr Singh says Ms Milnes prepared the documents required by the PBWA and gave them to him. She denies this and says she asked Mr Singh to prepare the documents for her signature.

94 Ms Milnes gave evidence that she has no originals of any personal documents relating to Mr Singh. She says that, after he left BCC, she found that all papers from his personal file in her office had been removed. She believes he removed them. She says she saw him on one occasion at the filing cabinet with documents in his hand and he said he was 'just photocopying something'; when she looked in his file later the documents were not there.

95 As a result, other than one or two documents, the Tribunal has before it only the version submitted by Mr Singh.

96 The documents submitted by Mr Singh are dealt with in turn below.

Job Description

97 Mr Singh claims Ms Milnes gave him this document when they met on 9 December 2005. It bears her signature and is headed:

Job Description For:

Charan Jit Singh (Contract Psychologist)

98 It refers to 'Present employee' and, under 'Conditions of employment', to the high standard expected of 'a psychologist' at BCC. Regarding payment it states:

Contract Psychologists - Clinicians receive 50% of fees paid for professional services … and other duties that will be negotiated with the Registered Psychologist as the work arises.

…

BCC is responsible for:

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Regular payment of clinicians …

Four payments are paid into the clinician's bank account.

99 Ms Milnes does not dispute signing a job description because the PBWA requires one in order to confirm the placement. However, she denies having seen or signed this particular document which she says appears to be based on a BCC template. It contains a number of grammatical and spelling errors (for example, 'counseling') that do not appear in the original, and the reference to payments into a bank account do not appear in the BCC template. She believes Mr Singh re-typed this document from the template in her office. She says she would never have signed a document referring to him as 'Contract Psychologist' because he was not.

100 Ms Milnes cannot explain how her signature comes to be on the document but notes that, whereas she normally signs on, or not far above, the line in the signature block, the signature on the document is well above the line. She believes Mr Singh has scanned her signature into it.

101 Ms Milnes says the first time she saw this document was in the course of proceedings in the Western Australian Industrial Relations Commission (WAIRC) initiated by Mr Singh after he left BCC. When she saw it, she believed it was a forgery and it led to her formal complaint to the PBWA and her later complaint to the police.

102 The document is on what purports to be BCC letterhead but which differs from the official version. We deal with the BCC letterhead below.

Form 4: Certificate of Intention to Employ

103 Ms Milnes gave evidence that a Certificate of Intention to Employ is essentially an undertaking by a supervising psychologist to provide professional supervision in the manner required by the PBWA and is not evidence of an intention to employ in any formal sense. There is no requirement that the PBWA standard form be used for this purpose although it commonly is.

104 Ms Milnes does not dispute signing this form on 15 December 2005 and submitting it to the PBWA. The Tribunal notes that her signature is on the line, consistent with how she says she usually signs.

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Form 17: Approval of Supervision and Six Monthly Supervision Plan

105 The PBWA requires a Six Monthly Supervision Plan on a Form 17 to be completed and submitted at the beginning of each supervision program. A copy of Form 17 is before the Tribunal. It requires a Duty Statement to be attached.

106 The Form 17 submitted by Mr Singh is undated but states it is to commence on 15 December 2005. It is broadly similar to PBWA Form 17 but with notable differences: although it does not refer to payment, it refers to the 'Supervisee's employer' and notes that Mr Singh's employment is full­time, 40 hours per week, neither of which is in the standard PBWA form.

107 Ms Milnes doubts she saw this document but says she may have done. If she did, she believes Mr Singh may have added the references to 'employer' and 'employment' later. However, because PBWA documents use that term loosely, she might not have paid it attention.

Duty Statement

108 Attached to the Form 17 submitted by Mr Singh is a document headed Duty Statement on what purports to be BCC letterhead, apparently signed by Ms Milnes and Mr Singh on 15 December 2005.

109 Ms Milnes does not dispute signing this document but says that Mr Singh has added two duties to the BCC template which she believes he has copied from Josephine Caccetta's Duty Statement. She says she could have signed without noticing the following additional duties:

5. To be aware of the aims of my employer, (Belmont Counselling Clinic), and my role as a Psychologist in contributing to the achievement of these aims. [Tribunal's italics]

6. To be able to work cooperatively with others in meeting the goals of [BCC].

110 When asked about this document, Mr Singh claimed he copied it from Ms Caccetta's Duty Statement which Ms Milnes gave him at their first meeting so that he could prepare the necessary paperwork. The Tribunal notes that this is at odds with his evidence that Ms Milnes prepared all the necessary paperwork.

111 In support of this claim, Mr Singh produced to the Tribunal what purports to be Ms Caccetta's Duty Statement, which includes the paragraphs above. It bears Ms Caccetta's signature. However, her copy

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of the same document also bears the signature of Dr Ashley Frew who was her supervising psychologist at the time. Mr Singh has not explained the apparent inconsistency in the documents.

112 The Tribunal has before it three copies of a Duty Statement. One is the blank template used by BCC, one is Ms Papalia's signed Duty Statement and one is the document submitted by Mr Singh. Mr Singh concedes the letterhead on his document is different from that on the other two. His explanation is that Ms Milnes always made clear to him that he was special.

Monthly Supervision Plan for December 2005

113 Ms Milnes gave evidence that the PBWA requires each provisional psychologist under supervision to have a supervision plan but there is no standard form.

114 Mr Singh has submitted what purport to be monthly supervision plans signed by Ms Milnes and himself for December 2005 to May 2006. He conceded in oral evidence that no one else at BCC submitted monthly plans but maintains Ms Milnes insisted he do because he was so 'special'.

115 Ms Milnes does not dispute signing a version of a document headed 'Six Monthly Supervision Plan for Charan Jit Singh' each month. She told the Tribunal that Mr Singh would give her monthly reports to sign; she told him they were unnecessary, and not a PBWA requirement, but he pestered her and said they were just for him and she signed them.

116 The monthly 'plans' are clearly not prospective plans but rather purport to record discussions at weekly supervision meetings for the month. Ms Milnes says they would not meet PBWA requirements; there must have been a document recording a plan in accordance with PBWA requirements but she no longer has a copy and believes Mr Singh removed the original from her office.

117 The 'plan' for December 2005 submitted by Mr Singh purports to record six matters agreed on 9 December 2005 including:

4. Agreed to pay me 50% of all my clients.

5. Agreed to pay me $25/hours [sic] for all other additional work at the clinic.

6. Agreed my psychological fees rate to be charged from the clients @ $120/hour.

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118 Ms Milnes does not dispute signing a document like this in December 2005 but she denies signing the version submitted by Mr Singh and says he has amended it after she signed to include the items above. They do not appear in her version, a copy of which is before the Tribunal.

119 Ms Milnes says she had not seen the version submitted by Mr Singh until these proceedings and it led to her formal complaint to the PBWA and the police; she would not have signed it because it includes financial arrangements that she would not have accepted.

Form 19: Bi-Annual Progress Report

120 The PBWA requires a six-monthly progress report by a supervising psychologist. PBWA Form 19 is used for this purpose. It is quite distinct from Form 17.

121 Mr Singh has submitted a document headed Form 19 - Bi-Annual Progress Report attaching several pages of an evaluation form handwritten by Ms Milnes. It bears little resemblance to PBWA Form 19 and is almost identical to the Form 17 he submitted. It includes the same notes about full-time employment.

122 As with the other documents, Ms Milnes no longer has a copy of this document.

123 The evaluation notes submitted by Mr Singh include a number of comments which Ms Milnes does not dispute making and which Mr Singh says evidence race and religious discrimination. In particular, he refers to the following comments:

a) Sometimes has not clearly understood the underlying philosophical base of this particular clinic (one of the trading names is Christianity and Psychology Clinic) - perhaps needs to listen and learn more and not impose his own ideas. Needs to be more aware and sensitive of the effect of his own clothing/religion has on others around him.

b) Charan has struggled at time[s] to engage the 'Aussie' co-worker/client however is optimistic in his own development here. Has been required to work on his telephone voice.

c) Several areas for improvement have emerged from this work experience: (1) the awareness 'Aussie' cultural boundaries.

124 Ms Milnes denies her comments evidence discrimination but it is not necessary to deal with that here. She says she completed the form
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honestly but Mr Singh was offended that she did not rate him 'excellent'; he said he intended commenting on the report that he disagreed with her and showed her what he intended writing.

125 Mr Singh's comments appear on the document but Ms Milnes says they are not what he showed her at the time. In particular, she says, the following was not on what he showed her:

As one of the trading names is Christian Counselling Clinic and I am of an ethnic Indian community background. This clinic caters mainly for Christian population.

126 She says he has added this comment after she signed the document. The lines on the page on the version before the Tribunal do not quite line up and it appears to have been made from a document which has been cut in places.

Salary Pay Slip

127 Mr Singh has submitted a document headed Salary Pay Slip that he says Ms Claughton gave him on 9 March 2006. It purports to be on BCC letterhead and states:

Singh, your salary for the months of December 2005, January 2006 and February 2006 is paid to your requested Commonwealth bank account. This is part payment as agreed between us and a full payment would be adjusted in your next salary. Please put in your tax invoices in by the first week of each month. Please check the attachment from our MYOB printout. If there is any discrepancy please contact us.

128 The Salary Pay Slip is not signed but purports to be from:

Practice Manger [sic] For

Genevieve Milnes

129 The 'MYOB printout' referred to has not been submitted but Mr Singh submits a statement of his bank account showing a payment of $1,085 made by BCC on 9 March 2006.

130 Ms Milnes says the Salary Pay Slip has been fabricated; she never issues pay slips and she has never seen this document before these proceedings. It was one of the documents that led her to go to the PBWA and the police.

131 Ms Claughton says she did not give Mr Singh this document; she did not give any of the provisional psychologists a payslip; they would

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provide invoices and she would pay them by means of electronic funds transfer. She told the Tribunal that only employees (as distinct from contracted provisional or registered psychologists) receive a pay slip; at the material time, she was the only employee at BCC and she did not issue herself with a pay slip.

132 Mr Singh conceded in cross-examination that only employees receive salary pay slips. He conceded that all the clinicians at BCC are contractors and that contracted staff are not employees and are not issued with pay slips. He conceded that it would be 'absurd' for someone to issue an invoice and then receive a salary pay slip but says a lot of absurd things happened at BCC. He could not explain why, as a contracted psychologist, he would receive a pay slip. He conceded that Ms Claughton would not refer to herself on a document as 'practice manger' [sic].

133 Mr Singh first produced the Salary Pay Slip in these proceedings after lodging his second victimisation complaint in August 2007. Under cross­examination, he could not recall at first whether he produced it in the WAIRC proceedings; he then conceded he had not, even though those proceedings had been on foot for some months by August 2007.

134 The Salary Pay Slip states 'a full payment would be adjusted in your next salary' and asks Mr Singh to 'put in your tax invoices by the first of each month'.

135 Mr Singh gave evidence that the issue of payment was not resolved when he left for India two or three days after receiving the Salary Pay Slip, even though the document suggested it was ('full amount would be adjusted in your next salary'). Although he claims that $1,085 was less than what was owed him, he conceded under cross-examination that he did not submit further invoices each month as requested. He has not explained why he did not pursue further payment even though he claims to have had an argument with Ms Milnes in June 2006 because he had only received one payment.

136 When pressed about why he did not submit further invoices, Mr Singh then claimed that he did, then said he lodged only one invoice, after he returned from India. When asked why he has not produced any to the Tribunal, he claimed that Ms Claughton created them. He then conceded that contractors submit their own invoices.

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Business cards

137 Shortly after Mr Singh started at BCC, Ms Milnes had 1,000 business cards printed for him which he cites as further evidence of their employment relationship. They refer to him as 'Counselling Consultant' and note 'Home Visits Available'. It is not in dispute that Mr Singh was the only provisional psychologist at BCC with his own business card.

138 Mr Singh says it was Ms Milnes' idea to have the cards printed for him because he was special; he had extensive experience and could speak several languages. He denies asking for them to be printed or suggesting they would be useful with his extensive contacts in the medical and legal professions, the taxi industry and the Indian community.

139 Ms Milnes says Mr Singh continually told her he could help her make lots of money through his business contacts and links in the Indian community which he could use to promote BCC. At the time, she had been thinking about expanding her business and, although she says she felt unsure about Mr Singh representing BCC, he was very insistent. She agreed he could identify himself on the cards as 'provisional psychologist' but he insisted on 'counselling consultant'. She says Ms Claughton expressed reluctance when asked to organise the cards but Ms Milnes could not see at the time why he should not have them if he was performing tasks on BCC's behalf.

Letter dated 21 December 2005 to Ms Milnes

140 Mr Singh has submitted to the Tribunal a copy of a letter dated 21 December 2005 which he claims he gave to Ms Milnes once her repeated offensive remarks were no longer 'a funny joke'.

141 The letter states he is 'very distressed and upset' about practices at the clinic. In summary:

(i) he cannot work on any BCC computer because most of the software is illegal; he discussed this with her the previous week and asked for his salary in order to buy a laptop; he has had to borrow to buy a laptop and asks for early payment as agreed;

(ii) he does not want to be part of any illegal activity;

(iii) he has found that most psychometric testing at BCC is done on photocopied tests 'in breech of the APS';

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(iv) Ms Claughton has made racist remarks about his religion; it was OK if they were a joke but he would appreciate this not happening in future; and

(v) from now on all; correspondence between them is to be in writing; please do not reply by email; please place a copy on his personnel file.

142 Ms Milnes denies receiving this letter and believes it has been fabricated.

143 Mr Singh claimed in oral evidence that he discussed this letter with Ms Milnes at their next supervision session. Under cross­examination, he could not recall if he had recorded sending this letter, or Ms Milnes' response, in his journal. There is no reference in it to his Journal Supervision Notes for 23 December 2005 or 28 December 2005, although the notes purport to record discussion of some of the items above. His note of their meeting on 23 December 2005 recording 'My first confrontation with Mrs Milnes regarding illegal activities at her clinic' appear at odds with having already given her this letter. Further, the letter makes no reference to the offensive comments made by Ms Milnes from 9 December 2005 and recorded elsewhere in his notes.

144 Mr Singh did not produce this letter until June 2007 when he submitted it to the Commissioner for Equal Opportunity.

Letter to Minister for Planning

145 The Tribunal heard lengthy evidence about a letter from Ms Milnes to the then Minister for Planning, Hon Alannah McTiernan, offering to undertake psychological assessment of taxi drivers. Ms Milnes and Mr Singh are at odds about who suggested the letter, who wrote it and who sent it to the Minister.

146 A copy of a letter to the Minister dated 24 January 2006 from Ms Milnes is before the Tribunal. It is on the same BCC letterhead as other documents submitted by Mr Singh. The signature appears to have been scanned.

147 Mr Singh claims Ms Milnes drafted and signed the letter and forced him to send it. She agrees she signed a letter to the Minister and that it was sent but says it was Mr Singh's suggestion that BCC offer its services as part of expanding her business. She cannot recall the process by which the letter was drafted or sent, or details of the letter other than that she and

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Mr Singh emailed drafts between themselves. She does not deny the possibility that she signed, or allowed to be signed, a letter on this particular letterhead.

148 The Tribunal notes that an early draft of the letter, which Mr Singh sent to Ms Claughton by email on 16 January 2006, starts:

Dear Alannah

Firstly I would like to introduce myself, my name is Charan Jit Singh and at present I am working as a Counselling Consultant at [BCC] … I am a WA qualified Psychologist …

BCC letterhead

149 Documents before the Tribunal are on three different versions of BCC letterhead. The differences are in the font and layout of the text 'Belmont Counselling Clinic Pty Ltd' and the leaf-shaped logo next to it. BCC alleges that Mr Singh has forged its letterhead on a number of documents.

150 The first version appears only on Ms Caccetta's Duty Statement which Ms Milnes told the Tribunal was prepared in about 2003. Ms Milnes gave evidence that this version has not been used for some time although she could not be precise about dates.

151 The second version appears on documents including Mr Singh's business card and BCC's template Duty Statement. Ms Milnes says this is the genuine BCC letterhead.

152 The third version appears on documents submitted by Mr Singh: the Job Description, Duty Statement, Salary Pay Slip and letter to the Minister for Planning. It does not appear on any 'official' BCC document.

153 Ms Milnes does not dispute signing a Duty Statement (but not the version submitted by Mr Singh) and she does not discount the possibility that she signed documents on a fabricated letterhead; she says she does not always pay these things attention.

154 Mr Singh does not dispute that the letterhead on BCC's template Duty Statement and on his business card is genuine but disputes that BCC has an 'official letterhead'. He acknowledges differences between the two versions, for instance in the Duty Statements, but denies fabricating the letterhead and maintains Ms Milnes drafted all the documents on letterhead that he has submitted.

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155 Ms Milnes' signature on documents

156 Ms Milnes gave evidence that Mr Singh showed her how to scan her signature and scanned several versions for her. A document showing seven scanned signatures, created by Mr Singh for Ms Milnes, is before the Tribunal. It is not suggested that any of the signatures is not genuine.

157 Ms Milnes does not dispute that her scanned signature appears on several documents but maintains Mr Singh must have scanned it himself into documents such as the Job Description.

Record of offensive comments and behaviour

158 Mr Singh claims to have kept contemporaneous notes of events in a journal on his laptop. Some of those notes have been produced to the Tribunal. He claims that his laptop and records have been lost.

159 Mr Singh has produced to the Tribunal records that he says he compiled contemporaneously, or within a day or two, listing by date and time offensive remarks made by Ms Milnes. They range from questions about how he arrived in Australia, his citizenship and why he did not take off his turban and convert to Christianity, to comments including 'Fuck you, Indian' and 'Fuck your turban; throw it away'.

160 According to Mr Singh's notes, Ms Milnes started making comments at 4pm on 9 December 2005, the day he started at BCC. In his written statement, he claims there was 'not a single day' when Ms Milnes or Ms Claughton did not make a 'funny comment' about his religion or his dress.

161 Mr Singh claims that Ms Claughton made similar offensive comments, in particular about his turban, but he did not record them in his notes because she was 'a puppet' through whom Ms Milnes spoke.

162 The comments are recorded in three documents before the Tribunal: Mr Singh's written witness statement; an amendment to the statement of evidence with a detailed table attached; and the document headed 'My Journal Supervision Notes'. For documents said to be prepared contemporaneously, the language appears contrived and the use of tense is inconsistent.

163 Apart from one minor error (10pm instead of 10am) Mr Singh insisted to the Tribunal that his records are accurate. However, there are a number of inconsistencies or omissions in the documents submitted. For example, two comments in the amended witness statement are not in the

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original; some comments which he claimed in oral evidence were made do not appear in any document; and in some cases, although Mr Singh claimed to have recorded a particular remark, he could not point to it.

164 On each occasion an inconsistency or omission in his notes was put to Mr Singh, he gave varying explanations: he had lost his computer with the original records; there was a problem with his computer; he had kept several files on his computer; he had lost his journal for the time in question; or he had no legal representation at the time. At one point he claimed that in fact not all of the records were made contemporaneously but he had added some notes later.

165 By way of example, Mr Singh claimed for the first time in oral evidence that Ms Milnes said on one occasion 'Do you want to go to heaven or hell?'. Although he insisted he recorded this in his journal and on his computer at the time, he has not produced his journal and maintains his computer has been lost. He also claimed that Ms Milnes told him Ms Papalia was getting more clients than him because she was Christian and he was Sikh. Again, although he claimed to have recorded this in his journal, it does not appear in the documents submitted. He also claimed he recorded in his lost journal (but nowhere else) the 50 occasions when Ms Milnes, her husband or Ms Claughton gave him articles about the Sikh, Sadhu Singh, something he found deeply offensive.

166 Several records note comments made at a time when Ms Milnes says she could not have met with Mr Singh because of other commitments. Some of these supervision meetings are recorded in the monthly Supervision Plan which Ms Milnes concedes she signed. However, she says she signed them at Mr Singh's insistence and without paying them much attention. On checking against her diary later, some of those supervision meetings could not have happened at the times he had recorded.

The evidence generally

167 Ms Milnes was not entirely frank about payment of provisional psychologist at BCC until pressed in cross­examination. Her written statement that no provisional psychologists at BCC are paid is contradicted by BCC records. Her reasons for failing to disclose this evidence earlier are not clear but, in the end, all that the records show is that others were paid while they were provisional psychologists, not that any were engaged on the basis of payment.

168 In all other respects, we found Ms Milnes to be a credible witness.

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169 Although Ms Claughton denied making any comments about Mr Singh's dress or religion, we accept the evidence of Ms Healy that Ms Claughton did make reference to them, but not in the derogatory terms claimed by Mr Singh. Otherwise, we found Ms Claughton to be a credible witness.

170 We have no reason to doubt the evidence of Ms Healy or Ms Caccetta.

171 We are not satisfied that Mr Singh was a credible witness. We find he has exaggerated or fabricated many, if not most, of his claims; further, that he has fabricated a number of documents submitted in evidence. Almost every aspect of his evidence was marked by evasiveness, exaggeration and implausibility.

172 When inconsistencies or omissions in his records were put to him, Mr Singh repeatedly claimed that corroborating notes in his computer or journal had been lost. Given the voluminous material he submitted to the Commissioner for Equal Opportunity and this tribunal (as well, we understand, to the WAIRC), it is not credible that he would have lost only those records which might undermine his claims. We do not accept that he kept contemporaneous notes as he claims or that he has lost his notes, whether kept on his computer or elsewhere.

173 Mr Singh was evasive under cross­examination and had to be pressed repeatedly to respond directly to questioning. Frequently he would only concede matters when cross­examined at length or confronted by contradictory evidence. By way of example, he denied telling Ms Milnes at their first meeting that he was having trouble obtaining a position because he was Sikh and wore a turban but finally conceded he did say this. He repeatedly denied approaching several psychologists before approaching Ms Milnes about supervision, including one in particular, until he was shown a document that suggested otherwise; he then said he approached that person for a different purpose; on further questioning he could not recall if he had approached that person at all.

174 Some of Mr Singh's claims are simply implausible. For instance, given that he was a recent graduate and had no other particularly relevant experience, it is implausible that Ms Milnes would tell him on his first day that he was one of the best counsellors she had ever met, agree to pay him as much as her highest paid registered psychologist and offer him his own consulting room when others had to share a room. She had not even had an opportunity to observe him at work and nothing in his background or

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experience gives any credence to this claim; his presentation before this tribunal positively undermines it.

175 Allowing, for the sake of argument, that Ms Milnes told Mr Singh he was the best counsellor she had ever met, it is implausible that she would make racist and offensive comments, from his first day at work, to someone she regarded so highly and who was so 'special'. We do not accept his evidence about this.

176 A further example is Mr Singh's failure to submit further invoices after March 2006 as requested. This cannot sensibly be reconciled with his insistence that he should have been paid. Under cross­examination, he changed his evidence about this. He first maintained he submitted further invoices after the payment of $1,085; then said he submitted only one. He has not produced a copy to the Tribunal and we do not accept his evidence on this point.

Payment of other provisional psychologists at BCC

177 Ms Milnes conceded in oral evidence that a number of provisional psychologists at BCC have been paid, in Ms Papalia's case from within a week or two of commencing at BCC. Nor is it the case that no provisional psychologist is paid for administrative duties; Ms Caccetta gave evidence that she was paid $25 an hour for administrative assistance. Even Rehza Tan, a provisional psychologist whom she felt lacked confidence, was paid.

178 The arrangement for payment appears somewhat arbitrary but nothing precludes Ms Milnes from paying a provisional psychologist at any time. That is not to say that she agreed to pay Mr Singh or that they had an employment relationship.

179 We accept that Ms Milnes rarely agrees to pay a provisional psychologist at an initial interview and we accept she did not enter into such an agreement with Mr Singh then, or at any time.

Findings about documents

180 The originals of many documents are not available for comparison. Ms Milnes believes Mr Singh removed all his personal documents from her office. We make no finding as to whether he did or not.

181 Taking into account Mr Singh's evidence generally, and for the following reasons, we find that he has fabricated a number of documents submitted to the Tribunal.

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BCC letterhead and Ms Milnes' signature

182 We accept Ms Milnes' evidence that the third version of the BCC letterhead is not the genuine BCC letterhead even though we note that she concedes the possibility she may have signed a document on it. We accept her evidence that Mr Singh prepared the various documents on which it appears. We do not accept his claim that they were prepared by Ms Milnes.

183 The third version of BCC letterhead appears only on documents prepared by Mr Singh. We find he has fabricated the letterhead and the documents on which it appears. We do not include the letter to the Minister for Planning in these.

184 We accept Ms Milnes' evidence that she would normally sign a document on, and not above, the line. Mr Singh had the knowledge and ability to scan her signature as evidenced by the fact that he showed her how to do it. We accept that Ms Milnes did not sign the Job Description and find that Mr Singh has fraudulently inserted her scanned signature into this document.

Certificate of Intention to Employ

185 Ms Milnes does not dispute signing a Certificate of Intention to Employ and there is no reason to doubt the authenticity of the document submitted by Mr Singh.

Form 17: Approval of Supervision and Six Monthly Supervision Plan

186 Ms Milnes doubts she signed this particular document but she may have done. We make no finding as to its authenticity.

Job Description

187 We accept Ms Milnes' evidence that she did not sign this document which refers to Mr Singh as a 'Contract Psychologist'. It contains a number of errors not in the BCC template and it is on what we find to be a fabricated BCC letterhead.

188 We find that Mr Singh has fabricated this document.

Duty Statement

189 Ms Milnes does not dispute signing this document but says that Mr Singh has added paragraphs. She accepts that she might have failed to

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notice them when she signed it. We accept her evidence that Mr Singh produced this and the other documents related to his supervision.

190 The document is on fabricated letterhead. The document itself may or may not be genuine but, in any event, we find that Mr Singh has fabricated the letterhead.

Monthly Supervision Plan for December 2005

191 Ms Milnes does not dispute a 'plan' for December 2005. She denies signing Mr Singh's version because it contains financial arrangements that she would never have agreed to. She has produced a copy of what she says she signed.

192 We accept Ms Milnes' evidence and find that Mr Singh has fabricated this version of the document.

Bi-Annual Progress Report

193 The last page of this document is in dispute. From the copy before the Tribunal, it appears to have been cut. We accept Ms Milnes' evidence that she did not see, or agree to, the comments inserted by Mr Singh. We find he has fabricated this part of the document.

Salary Pay Slip

194 The payment of $1,085 is not in dispute. What is disputed is whether it was by way of salary owed or a gift.

195 We do not accept this document is genuine. It is on the 'unofficial' letterhead and contains grammatical and spelling errors. We accept Ms Claughton's evidence that any contracted staff submitted invoices and do not receive pay slips. Mr Singh himself conceded it would be 'absurd' if they did. We accept Ms Claughton's evidence that she did not give Mr Singh this document. He did not produce it until August 2007 even though he had proceedings in both the Equal Opportunity Commission and the WAIRC well before then. We find that Mr Singh has fabricated this document.

Business cards

196 The authenticity of the business cards is not in dispute but the respondent denies they evidence an employment relationship.

197 Ms Milnes' decision to order business cards for Mr Singh appears at odds with her concern about his professional skills and his suitability to

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represent BCC. Allowing him to represent himself as a 'Consultant Counsellor' and available for home visits was likely to suggest he was more experienced than he was. It appears her judgment may have been clouded by the prospect of the business he said he could generate through his extensive contacts.

198 However, we do not accept Mr Singh's claim that Ms Milnes agreed to pay him for any work done under the business card. We accept her evidence that she did not agree to pay him.

199 We do not accept the business cards evidence an employment relationship.

Letter dated 21 December 2005

200 As noted above, there is no reference in Mr Singh's Journal Notes to this letter or Ms Milnes' response. It refers to offensive remarks by Ms Claughton but not by Ms Milnes.

201 It is unlikely, but not impossible, that an employee would write to an employer in the terms of this letter within two weeks of starting work.

202 We accept Ms Milnes' evidence that she did not receive this letter from Mr Singh. Mr Singh did not produce it until June 2007, some 18 months after he says he sent it. We do not accept it is genuine and find that Mr Singh fabricated it some time after the event to support his claims of discrimination.

Letter to the Minister for Planning

203 The evidence about the origin of this document is confusing. We are satisfied that it was written at Mr Singh's suggestion. It is not clear whether Ms Milnes saw a final version on 'unofficial' BCC letterhead but, even if she did, she apparently took little notice of any letterhead at the time. Although Ms Milnes agreed to the letter, we find that Mr Singh produced it on fabricated letterhead and sent it.

Record of offensive comments and behaviour

204 We do not accept that this document was compiled from notes or records made contemporaneously or that it reflects comments made by Ms Milnes.

205 We accept Ms Healy's evidence that Ms Claughton commented to her on Mr Singh's turban and his religion. However, as noted already, we

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do not accept that Ms Milnes made these comments from Mr Singh's first day and, further, their frequency is implausible. Further, we heard evidence from Ms Milnes, which we accept, that she had other commitments at some of the times recorded by Mr Singh.

206 We find that Mr Singh's document has been compiled some time well after the event for the purpose of these proceedings and that it does not reflect events at the time.

Mr Singh's complaints of victimisation

207 On 26 September 2006 Mr Singh lodged with the Commissioner complaints of race and religious discrimination and victimisation. The Commissioner dismissed the victimisation complaint and it was not referred to the Tribunal.

208 In the course of investigating the first complaints, the Commissioner wrote to Ms Milnes on 14 November 2006 notifying her of them and asking for her response. Mr Singh says that Ms Milnes was therefore aware of his complaints from around 17 November 2006. Ms Milnes does not dispute that she became aware of the complaint around this time.

209 Mr Singh lodged his second and third complaints of victimisation with the Commissioner on 5 June 2007 and 15 August 2007 respectively.

Allegations of victimisation

210 Mr Singh claims that he told Ms Milnes many times while he was at BCC that she should not discriminate against him; he made it 'absolutely clear' to her and said 'This is 2008. This is not 1940s. Don't discriminate, otherwise there are consequences'. He claims that, in response, Ms Milnes told him many times that she would ruin his career as a psychologist and, on his last day at BCC, said she would 'make a ten times most complaint' in 'any jurisdiction' he went if he dared to go to the Equal Opportunity Commission .

211 Ms Milnes denies that Mr Singh ever mentioned discriminatory conduct or that she made any reference to making a complaint about him.

212 Mr Singh's alleges that, while he was at BCC, Ms Milnes victimised him, including by:

(i) assaulting him on two occasions by hitting him on his beard and telling him to shave and take off his turban;

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(ii) telling him, in his last week, that she would get friends at a prison inmates' home to fix him up; and

(iii) reducing his clients and taking a patient away from him without the patient's, or Mr Singh's consent.

213 Ms Milnes denies every allegation of victimisation. She denies assaulting Mr Singh and denies saying she would get anyone to 'fix him up'. She does not deny reducing his clients but says this was because she was concerned about his professional conduct and his abilities.

214 Mr Singh says that, after he left BCC, Ms Milnes further victimised him by:

(i) making threatening telephone calls to him;

(ii) lodging a complaint with the PBWA;

(iii) making a false complaint to the Kalgoorlie Police;

(iv) threatening Rehza Tan, another provisional psychologist who he says supports his evidence but who is now 'missing'; and

(v) encouraging another psychologist to complain to the PBWA about him.

215 Mr Singh claims he recognised Ms Milnes' voice when she made threatening telephone calls and that he made contemporaneous records of the calls but he has not produced his records to the Tribunal and nor has he produced telephone records to support his claims. There is nothing to suggest that the telephone records could not be obtained. Despite his extensive notes of other incidents, he says he did not record Ms Milnes' threat to get prison inmates to 'fix him up' in his journal at the time.

216 Ms Milnes does not deny lodging complaints about Mr Singh with the PBWA and the police but denies they constitute victimisation. She denies the other allegations and says she does not know the other psychologist who complained to the PBWA about Mr Singh.

Allegations about Ms Milnes' complaints to the PBWA and the Kalgoorlie police

217 On 14 February 2007, Ms Milnes lodged a formal complaint through her solicitors with the PBWA alleging 10 counts of serious misconduct

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and unprofessional behaviour by Mr Singh including that he had represented himself as a doctor and a psychologist; used BCC letterhead fraudulently to create documents; offered to pay her to change the Bi­Annual Progress Report; behaved inappropriately with staff and clients of BCC; removed documents from BCC; amended practice records; and harassed her since he left BCC.

218 Mr Singh says Ms Milnes lodged her complaint solely in response to his complaint to the Commissioner and that it constitutes victimisation within the meaning of the EO Act. In particular, he says Ms Milnes lodged her complaint eight months after he left BCC and none of the matters in it was mentioned in the Bi­Annual Progress Reportin which she concluded his progress was satisfactory.

219 Although in oral evidence Ms Milnes could not recall the precise date, she does not deny receiving correspondence from the Commissioner for Equal Opportunity around mid­November 2006 advising her of Mr Singh's complaint.

220 Ms Milnes denies her complaint to the PRWA was motivated by Mr Singh's complaint to the Commissioner. She says she first raised her concerns with the PBWA on 14 June 2006, the day Mr Singh left BCC, after they had an argument. She contacted Ms Kym Firth at the PBWA that day when she could not find a copy of Mr Singh's Bi-Annual Progress Report and was worried he might alter it. Ms Firth asked her to put any further concerns in writing but Ms Milnes did not really want 'to be known by the Board' and, in any event, Ms Firth confirmed she could make a written complaint at any time.

221 Ms Milnes says her formal complaint was prompted when Mr Singh produced 'employment' documents at a conciliation conference in January 2007 in the WAIRC or the Equal Opportunity Commission proceedings. She says at this point she thought Mr Singh was 'a dangerous person' and realised the matter was very serious. She spoke to two senior clinical practitioners who advised her she should be 'very, very concerned' about Mr Singh who they believed had 'done a lot of illegal things'. She says she felt that PBWA requirements in relation to professional and ethical issues (PBWA Supervision Guidelines for Provisionally Registered Psychologists) made it encumbent on her to inform the PBWA.

222 It was put to Ms Milnes by counsel for Mr Singh that she made her complaint to the PBWA, without telling him, at a time when negotiations

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between them were on foot in both Commissions. She did not dispute this and concedes she should have contacted the PBWA 'a long, long time ago'. She denies she was motivated by revenge.

223 Correspondence dated 15 January 2008 from solicitors for the PBWA to Ms Milnes' solicitors confirms that she called Ms Firth at the PBWA on 14 June 2006 at 3.48pm 'regarding a report in relation to a Mr C Singh'. The letter advises that no other information was recorded and Ms Firth has no recollection of what was discussed. The Tribunal has not heard from Ms Firth but has no reason to doubt Ms Milnes' evidence that she rang for the reasons she says.

224 Ms Milnes gave evidence that, in December 2006, she reported what she believed to be a fraudulent document produced in the legal proceedings to a Kalgoorlie detective when she had the opportunity. She says she was concerned that Mr Singh had manipulated documents to try to get money out of her. She expected the police would investigate and advise her what to do.

225 Ms Milnes denies being motivated by revenge in reporting the matter to the police.

Relevant legislation

226 Section 67(1) and 67(2) of the EO Act provide:

(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;

(b) has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act;

(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;

(d) has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act;

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(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.

227 Section 5 of the EO Act provides:

A reference in Part II, IIAA, IIA, IIB, III, IV, IVA or IVB to the doing of an act on the ground of a particular matter includes a reference to the doing of an act on the ground of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

228 Section 5 does not apply to acts alleged to have been done in contravention of s 67. In other words, the Tribunal must be satisfied that victimisation was the sole or dominant reason for Ms Milnes' conduct.

229 Mr Singh must satisfy the Tribunal that, on the balance of probabilities, Ms Milnes did the acts complained of, that she did them on one of the grounds in s 67 and that he has suffered a detriment as a result.

Reasons

230 A finding of victimisation is not dependent on a finding that the complaint of discrimination is made out. The complaint must be determined on its merits, whether or not the substantive claims succeeds.

231 We do not accept that Mr Singh raised the matter of discrimination with Ms Milnes while he was at BCC or that she threatened to complain about him. He has not produced any notes of these conversations or any other corroborating evidence. We prefer Ms Milnes' evidence and find that these conversations did not happen.

232 Ms Milnes took a long time before lodging a formal complaint with the PBWA about Mr Singh, and not until after she knew about his discrimination complaint. On its face, it would appear that her complaint was in response to his.

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233 It is certainly difficult to reconcile Ms Milnes' many concerns about Mr Singh's professional conduct with her failure to complain about this earlier. It is also difficult to reconcile with the fact that she allowed him to continue his placement and even see clients. BCC records show he saw clients as late as 3 May 2006 and 4 June 2006. Ms Milnes says she agreed he could see these clients because he had seen them previously.

234 Other than the comments Mr Singh objects to in the Bi-Annual Progress Report, Ms Milnes' comments about him in the report are generally positive and not easily reconciled with the matters in her complaint to the PBWA.

235 Having said that, we accept the evidence that Ms Milnes rang the PBWA on 14 June 2006 and expressed concerns about Mr Singh. The fact that she did not put her concerns in writing does not mean they were not real. As she put it herself, she did not really want 'to be known by the Board'. Whatever her reasons, it does not follow that her sole or dominant motivation, when she did finally complain, was to victimise Mr Singh on account of his complaint to the Commissioner for Equal Opportunity.

236 There may have been an element of self­interest in Ms Milnes' complaints to the PBWA and the police: matters were escalating and allegations were being made in public forums about her. However, we accept her evidence that she became concerned when Mr Singh produced what she believed were fabricated documents, that she spoke to others who confirmed her concerns and that she then went to the PBWA. We also accept her evidence about why and when she made her complaint to the Kalgoorlie police.

237 We accept Ms Milnes considered it her professional duty to report Mr Singh's conduct to the PBWA and her concerns about fabricated documents to the police. She accepts that she should have reported his conduct sooner.

238 Taking all these matters into account, we are not satisfied that her conduct constitutes victimisation within the meaning of the EO Act.

Conclusion

239 For the reasons set out above, the Tribunal is not satisfied, on the evidence, that BCC at any time agreed to pay Mr Singh for his services or that he was employed by BCC within the meaning of the EO Act. It follows that his complaint of discrimination on the grounds of race and religious conviction in employment must fail.

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240 The Tribunal is not satisfied that Ms Milnes victimised Mr Singh within the meaning of the EO Act. Those complaints also fail.

Order

241 The applications are dismissed.

I certify that this and the preceding [241] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS J TOOHEY, SENIOR MEMBER